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FORMS 


ADAPTED    TO    THE 


PRACTICE 


VIRGINIA. 


By    CONWAY    ROBlNSON. 


VOLUME    I. 

CONTAINING 
FORMS    IN   THE    COURTS    OF    LAW    IN    CIVIL    CASES. 


RICHMOND: 

PRINTED    BY    SHEPHERD    AND    COLIN 

and  sold  by  Smith  ^  Palmer. 
1841. 


Entered,  according  to  act  of  congress,  on  the  twenty-seventh  day 
of  May  in  the  year  eighteen  hundred  and  forty-one,  by  Conway 
Robinson,  in  the  clerk's  office  of  the  district  court  of  the  eastern 
district  of  Virginia. 


Cyr^tWi 


PREFACE. 


Many  years  ago,  my  father  published  a  volume  of  forms  for 
clerks  of  courts,  with  precedents  of  declarations,  indictments 
and  informations,  and  some  forms  of  conveyances.  During 
the  time  that  I  was  in  a  clerk's  office,  the  first  edition  became 
exhausted,  and,  with  my  father's  approbation,  I  published  a 
second.  The  second  edition  having  been  prepared  before  I 
had  thought  of  the  law  as  my  profession,  and  while  I  was  yet 
in  a  state  of  minority,  was  not  such  a  book  as  I  would  be  wil- 
ling to  publish  now.  But  notwithstanding  its  imperfections, 
so  great  was  the  necessity  for  it  that  every  copy  has  been  dis- 
posed of,  and  the  demand  still  continues.  Under  such  circum- 
stances, it  has  seemed  to  me  best  to  revise  the  work,  and,  at 
the  same  time,  adopt  a  plan  of  publication  which  will  make  it 
more  complete. 

The  plan  upon  which  I  have  determined,  is  to  publish  forms 
for  parties,  counsel,  justices,  sheriffs  and  other  officers  of  courts; 
to  publish  these,  generally,  in  the  order  of  the  practice  in  Vir- 
ginia, I  mean  the  order  of  the  work  known  as  Robinson's  Prac- 
tice; to  give  after  the  caption  to  each  form  a  reference  to  the 
page  in  the  practice,  at  which  there  is  mentioned  any  statute, 
decision  or  other  matter  connected  with  the  form  ;  and  occa- 
sionally to  refer  to  particular  statutes  or  decisions  when  in  con- 
sequence of  their  recent  date,  or  from  any  other  cause,  such 
reference  seems  material. 

The  order  of  arrangement  thus  determined  upon,  while  in 
no  wise  inconvenient  to  those  having  occasion  for  the  work  in 
attending  to  the  calls  of  business,  will,  it  seems  to  me,  prove  a 
great  facility  to  students  reading  the  work  on  practice,  who 
will  thus  be  enabled  to  refer  to  the  forms  in  the  order  in  which 
the  subjects  are  treated  of. 


IV  PREFACE. 


The  present  volume  contains  such  forms  as  are  called  for  by 
the  first  volume  of  the  practice,  and  for  the  most  part  in  the 
order  of  that  volume.  There  is  indeed  only  one  exception  to 
that  order  worth  mentioning.  The  forms  of  declarations  in 
the  actions  of  debt,  covenant,  assumpsit,  trespass,  detinue  and 
case,  instead  of  being  amongst  the  proceedings  at  rules,  in 
common  personal  actions,  are  placed  at  the  end  of  the  volume. 
In  this  part  of  the  volume,  decisions  upon  rights  and  remedies 
are  given  to  a  greater  extent  than  has  been  thought  necessary 
or  proper  in  any  other  portion  of  the  work. 

It  will  still  remain  to  give,  hereafter  forms  in  suits  in  equity  ; 
in  criminal  causes  ;  in  cases  before  courts  of  probate  ;  and  in 
other  cases  wherein  appeals  are  demandable  of  right,  such  as 
mills,  roads  and  the  like.  All  of  these,  as  well  as  some  forms 
of  conveyances,  may  perhaps  be  included  in  a  single  volume. 
As,  however,  the  legislation  anticipated  next  winter  may  affect 
somewhat  the  forms  in  criminal  causes,  I  do  not  propose  pub- 
lishing another  volume  until  after  the  next  session  of  the  legis- 
lature. 

It  may  not  be  amiss  to  add  that  when  the  whole  work  is 
completed,  such  of  the  forms  as  are  for  justices  and  sheriffs, 
may  be  published  separately,  in  a  volume  of  moderate  size. 

CON.  ROBINSON. 

Richmond,  June  1st,  1841. 


TABL.E2 

SHEWING  THE  CONTENTS  AND  ARRANGEMENT  OF  THIS  VOLUME. 


BOOK  I. 

FORMS  IN  THE  COURTS  OF  LAW  IN  CIVIL  CASES. 


CHAPTER  I. 

PROCESS    BY    WHICH    COMMON    PERSONAL    ACTIONS    ARE    COMMENCED. 

1.  Attorney's  memorandum  for  the  capias,  -  -         1 

2.  Capias  to  institute  an  action,  -  -  -         3 

3.  Affidavit  to  obtain  bail,  with  justice's  endorsement  on  the 

writ,    -  -  -  -  -         3 

4.  Summons  against  a  judge  of  the  general  court,  -        4 

5.  any  other  privileged  person,  -         5 

6.  a  bank  in  a  suit  instituted  in  the  county  where 

a  branch  is  established,      -  -         5 

7.  a  corporation  in  any  other  case,  -         5 

8.  Confession  of  judgment  in  the  office,  -  -         5 

9.  Notice  by  defendant  in  custody,  that  he  will  confess  judgment 

in  the  clerk's  office,  -  -  -         6 

10.  Return  of  capias,  where  it  is  executed  and  the  bail  required  is 

not  given,  -  -  -  -         7 

11.  Confession  of  judgment  in  the  office  by  defendant  in  custody, 

and  he,  not  being  prayed  in  custo- 
dy, discharged  therefrom,  -         7 

12.  in  the  office  by  defendant  in  custody, 

who  is  thereupon  prayed  in  cus- 
tody,    -  -  -         7 

13.  in  court  by  defendant  in  custody,      -         7 

14.  Return  where  bail  is  given  before  the  return  day  of  the*writ 

is  past,  -  -  -  -         8 

15.  Bail  being  given  in  term  time,  order  discharging  defendant,  8 

16.  Return,  where  bail   is  not  required  and  process  is  execu- 

ted,    -  -  -  -  -         9 

17.  Return  of  not  found,  -  -  -         9 

18.  of  no  inhabitant,  -  -  -         9 


VI  TABLE    OF    CONTENTS. 

CHAPTER  II. 

PROCEEDINGS    AT    RULES, 

1.  Entry  where  action  abates  by  the  return,  -  -  10 

2.  Award  of  alias  capias,  -  -  -  10 

3.  Alias  writ,  -  -  -  -  10 

4.  Award  of  pluries  capias,  -  -  -  10 

5.  Pluries  writ,  -  -  -  -  10 

6.  Award  of  testatum  capias,  -  -  -  10 

7.  Writ  of  testatum  capias,  -  -  -  11 

8.  Attachment  awarded  to  force  an  appearance,  -  11 

9.  Process  of  attachment,  -  -  -  11 

10.  Sheriff's  return  upon  attachment,  -  -  12 

11.  Proclamation  awarded,  -  -  -  12 

12.  Process  of  proclamation,  -  -  -  12 

13.  Sheriff's  return  upon  process  of  proclamation,  -  12 

14.  Conditional  judgment  in  a  suit  commenced  by  capias,         -  13 

15.  in  a  suit  commenced  by  summons,    -  13 

16.  where  officer  is  kept  off  by  force  of 

arms,      -  -  -  13 

17.  after  proclamation,         -  -  14 

18.  after  attachment,  -  -  14 

19.  confirmed,  -  -  14 

20.  Rule  to  declare,         -  -  -  -  14 

21.  Dismission  for  want  of  declaration,  -  -  14 

22.  for  want  of  declaration  set  aside  in  court,  -  15 

23.  Plaintiff's  next  friend  being  dead,  another  admitted  to  sue,  15 

24.  Declaration  filed  against  an  infant,  -  -  15 

25.  Guardian  assigned  by  the  court  to  defend  an  infant,  -  15 

26.  Appearance  of  infant  defendant  by  guardian,  -  -  15 

27.  After  infant  attains  his  age,  appearance  by  attorney,  -  15 

28.  Plea  to  the  jurisdiction,  -  -  -  15 

29.  Plea  in  abatement  to  the  person  of  the  plaintiff,  that  he  is  an 

alien  enemy,  -  -  16 

30.  ■    that  the  plaintiffs,  suing  as  husband  and 

wife,  never  were  married,  -  17 

31.  that  plaintiff  is  a  fictitious  person,  -  17 

32.  to  the  person  of  the  plaintiff,  that  he  was 

dead  when  the  writ  issued,  -  18 

33.  to  the  person  of  the  defendant,  that  the 

contract  was  made  by  him  and  his  part- 
ner jointly,  and  not  by  the  defendant 
separately,    -                    -                    -  18 
84.                                 for  variance  between  the  writ  and  decla- 
ration,          -                    -                    -  19 

35.  by  a  corporation  for  intrinsic  matter,       -  19 

36.  by  a  corporation  for  extrinsic  matter,       -  20 

37.  Entry  of  declaration,  defendant's  appearance,  and  rule  to 

plead,  -  -  -  -  20 

38.  at  succeeding  rule  day,  if  defendant  fail  to  plead,      -  21 


TABLE    OF    CONTENTS.  Vll 

39.  Entry  of  declaration,  defendant's  appearance,  oytr  of  writ, 

plea  in  abatement,  and  rule  to  reply,                        -  21 

40.  at  succeeding  rule  day,  if  plaintiff  fail  to  reply,         -     *  22 

41.  Demurrer  to  plea  to  the  jurisdiction,                 -                     -  22 

42.  to  plea  in  abatement,     -                     -                     -  22 

43.  Replication  to  plea  to  the  jurisdiction,              -                     -  22 

44.  Another  replication,                        -                     -                     -  23 

45.  Another,                     -                     -                     -                     -  23 

46.  Entry  of  demurrer  to  plea,  and  joinder,            -                     -  23 

47.  of  replication  to  plea,  and  rule  to  rejoin,                     -  23 

48.  of  general  rejoinder  to  replication,  and  issue  joined,  23 

49.  Oyer  of  obligation  and  condition,  and  demurrer  to  declara- 

tion,            -                     -                     -                     -  24 

50.  of  obligation  and  condition,  and  demurrer  to  one  of 

the  breaches  assigned,     -                     -                     -  25 

51.  Entry  of  declaration,  defendant's  appearance,  oyer  of  spe- 

cialty, demurrer  to  declaration,  and  rule  to  join,    -  25 

52.  at  succeeding  rule  day,  if  plaintiff  fail  to  join  in  de- 

murrer,       -                     -                     -                     -  25 

CHAPTER  III. 

SECURITY    FOR    COSTS. 

1.  Notice  that  security  is  required,    -                    -                    -  26 

2.  Rule  entered  in  court,  in  lieu  of  notice,           -                     -  26 

3.  Bond,  where  security  is  given  with  the  clerk,                        -  26 

4.  Recognizance,  where  security  is  given  in  court,                   -  27 

5.  Suit  dismissed  for  want  of  security,  after  sixty  days  notice,  27 

6.  after  rule  requiring  it,  27 

CHAPTER  IV. 

RULE  FOR  BAIL,  AND  EXCEPTIONS  TO  BAIL. 

1.  Order  ruling  defendant  to  give  bail,                  -                    -  28 

2.  Exceptions  to  bail  taken  by  an  oflScer,  -  -28 

3.  Entry  of  such  exceptions,              -                     -                     -  28 

4.  Decision  upon  exceptions  to  bail  taken  by  an  officer,            -  29 

5.  After  officer  is  bound  as  bail,  rule  upon  defendant  to  give 

other  special  bail,                       -                     -                     -  29 

6.  Entry  of  exceptions  to  bail  taken  by  any  other  than  an  offi- 

cer, -                    -                    -                    -                    -  29 

7.  Exceptions  to  bail  taken  by  officer,  for  insufficiency  happen- 

ing after  recognizance  taken,                         -                     -  29 

8.  Decision  upon  exceptions  to  bail  in  either  of  two  last  cases,  29 


Vm  TABLE    OF   CONTENTS. 

CHAPTER  V. 

SURRENDER  OF  DEFENDANT  BY  HIS  BAIL. 

1.  Bail  piece,  -  -  -  -  30 

2.  Entry  of  surrender  in  court  in  pending  suit,     -  -  30 

3.  Defendant  discharged  on  giving  other  good  special  bail,  -  30 

4.  Entry  of  surrender  in  court  after  judgment,     -  -  30 

5.  of  defendant's  surrender  of  himself  in  court  after  judg- 

ment,          -                    -                    -  -  31 

6.  Receipt  for  defendant,  when  surrender  is  not  in  court,  -  31 

7.  Notice  of  surrender  out  of  court,                      -  -  31 

8.  Notice  of  motion  for  exoneretur,                        -  -  32 

9.  Exoneretur  entered,                        -                     -  -  32 

10.  Writing  charging  defendant  in  execution,         -  -         33 

11.  Consent  by  creditor  to  discharge  of  principal,  -         33 

CHAPTER  VI. 

DEATH  OR  CHANGE  OF  PARTIES, 

1.  Suggestion  of  plaintiff's  death,     -  -  -         34 

2.  Discontinuance  of  suit  at  second  term  after  suggestion  of 

plaintiff's  death,    -  -  -  -         34 

3.  Order  awarding  scire  facias  to  revive  in  the  name  of,  or 

against  a  representative,  -  -  -         34 

4.  Writ  of  scire  facias  to  revive  in  the  name  of  the  represen- 

tative of  a  party,         -  -         34 

5.  to  revive  suit  commenced  by  an  execu- 

tor or  administrator,  in  the  name  of 
administrator  de  bonis  non,  -         35 

6.  to  revive  suit  brought  by  a  curator,  in 

the  name  of  executor  or  adminis- 
trator,    -  -  -        36 

7.  to  revive  against  committee  a  suit  de- 

pending against  idiot  or  lunatic,     -         36 
8L  to  revive  against  an  idiot  or  lunatic  a 

suit  depending  against  his  commit- 
tee, -  -  -        36 
9,  Sheriff's  return  upon  scire  facias  against  a  party  in  the  com- 
monwealth,           -                    -                    -  -        36 

1 0.  Order  awarding  scire  facias  against  defendant  who  is  out  of 

the  commonwealth,  -  -  -         37 

11.  Scire  facias  against  defendant  who  is  out  of  the  common- 

wealth,                  -                     -  -                     -  37 

12.  Return  of  service  upon  agent,      -  -                    -  38 

13.  Publication,                -                     -  -                     -  38 

14.  Return  of  service  by  publication,  -                     -  38 

15.  Order  reviving  suit  against  personal  representative  by  con- 

sent, -  -  -  -        38 


TABLE    OF    CONTENTS.  IX 

16.  Entry  upon  scire  facias  against  personal  representative  be- 

ing returned  executed,    -  -  -         38 

17.  after  return  of  a  scire  facias  against  personal  repre- 

sentative, when  he  pleads  de  novo,       -  -         38 

18.  Order  substituting  an  administrator  de  bonis  non  as  plaintiff 

in  the  place  of  an  executor  whose  pow- 
ers have  been  revoked,     -  -         39 

19.  an  administrator  de  bonis  non  as  defen- 

dant in  the  place  of  an  executor  whose 
powers  have  been  revoked,  -        39 

20.  Entry  where  one  of  two  plaintiffs  dies,  -  -        39 

21.  one  of  two  defendants  dies,  -  -        39 

22.  a  feme  plaintiff  marries,  -  -         39 

CHAPTER  VII. 

REMOVAL    OF    CAUSES. 

1.  Writ  of  habeas  corpus  cum  causa,                      -  -  40 

2.  Return  upon  writ,                           -                     -  -  40 

3.  Order  upon  return  of  writ,            -                     -  -  40 

4.  Certiorari  awarded  to  remove  a  cause  originally  cognizable 

in  a  circuit  court,  -  -         41 

5.  to  remove  a  cause,  where  justice  cannot 

be  done  in  county  court,  -         41 

6.  to  remove  a  cause  for  unreasonable  ne- 

glect or  delay,  -  -         41 

7.  Writ  of  certiorari  to  remove  a  cause,  -  -         41 

8.  Order  made  in  county  court  upon  production  of  certiorari,  42 

9.  to  docket  cause  upon  return  of  certiorari,  42 

10.  Procedendo  ad  judicium,  -  -  -         42 

11.  Order  changing  venue,  -  -  -        43 

12.  removing  cause  in  consequence  of  judge's  situation,  43 

13.  Petition  for  removal  of  cause  from  state  court  to  court  of 

United  States,       -  -  -  -         43 

14.  Bond  given  upon  removal  of  a  cause  from  state  court  to 

court  of  United  States,  -  -  -         43 

15.  Order  for  the  removal  of  a  cause  from  state  court  to  court  of 

United  States,       -  -  -  -         44 

CHAPTER  VIII. 

DEPOSITIONS    OF    WITNESSES. 

1.  Affidavit  that  witness  is  unable  to  attend  court,  -        45 

2.  where  there  is  a  single  witness  to  a  material  point,         45 

3.  where  witness  resides  out  of  the  commonwealth,  45 

4.  Order  awarding  commission  to  take  depositions  de  bene  esse,         46 

5.  to  take  depositions  in  chief,  of 

witnesses  residing  in  .another 
state,  -  -        46 

ii 


X  TABLE    OF    CONTENTS. 

6.  Order  awarding  commissions  to  both  parties,  to  take  the  de- 

positions of  their  witnesses  in 

the  state,  de  bene  esse,  46 

7.  to  both  parties  to  take  the  depo- 

sitions of  their  witnesses  out 

of  the  state,                           -  47 

8.  Commission  to  take  deposition  de  bene  esse,      -                     -  47 

9.  to  take  deposition  of  witness  out  of  the  com- 

monwealth,             -                     -                     -  47 

10.  Notice  of  application  for  commission  to  take  depositions  in 

a  foreign  country,                       -                     -                     -  47 

11.  Commission  awarded  to  take  depositions  in  a  foreign  country,  48 

12.  Notice  to  take  deposition,              -                     -                     -  48 

13.  to  non-resident  party,         -                     -                     -  49 

14.  Affidavit  of  service  or  publication  of  notice,                          -  49 
15    Return  of  a  commission  for  taking  depositions,                    -  49 

CHAPTER  IX. 

ATTENDANCE    OF    WITNESSES    IN    PERSON. 

1.  Subpoena  for  a  witness  to  attend  court,             -                     -  51 

2.  for  witness  to  attend  arbitrators,       -                     -  51 

3.  for  witness  to  attend  on  an  order  of  survey,          -  51 

4.  Order  awarding  subpoena  duces  tecum,               -                     -  51 

5.  Writ  of  subpoena  duces  tecum,       -                     -                     -  52 

6.  Order  awarding  writ  of  habeas  corpus  ad  testificandum,        -  52 

7.  Writ  of  habeas  corpus  ad  testificandum,            -                     -  52 

8.  Witness  brought  up  by  habeas  corpus  remanded  after  giving 

testimony,               -                     -                  .  -                     -  52 

9.  Entry  of  rule  upon  a  sheriff  for  not  returning  a  subpoena,  53 

10.  Summons  against  the  sheriff  under  the  preceding  order,  53 

11.  Entry  of  rule  against  a  witness  for  not  attending  in  obedi- 

ence to  a  subpoena,                     -                     -                     -  53 

12.  Summons  against  witness  under  the  preceding  order,            -  54 
J3.  Rule  against  a  witness  discharged,                     -                     -  54 

14.  Witness  fined  for  his  failure  to  attend,               -                     -  54 

15.  Attachment  awarded  against  a  witness  for  contempt  in  not 

attending,                -                     -                     -                     -  54 

16.  Process  of  attachment,                    -                     -                     -  55 

17.  Order  committing  to  prison  a  witness  who  refuses  to  give  evi- 

dence,         -                    -                    -                    -  55 

18.  in  favour  of  witness  for  his  attendance,                        -  55 

19.  Attachment  on  order  for  attendance,                  -                     -  55 

20.  Summons  against  an  executor  upon  order  for  attendance,  55 


TABLE    OF    CONTENTS.  XI 

CHAPTER  X. 

DISCOVERY    FROM    A    PARTY. 

1.  Interrogatories  to  a  party  to  obtain  a  discovery  from  him 

with  affidavit  subjoined,  -  -  -         57 

2.  Entry  of  interrogatories  being  filed,  and  order  thereupon,  57 

3.  Affidavit  to  obtain  the  discovery  and  production  of  a  writing 

in  the  possession  of  adverse  party,  -  -        58 

4.  Entry  of  affidavit  being  filed,  and  order  thereupon,  -        58 

CHAPTER  XI. 

PLEAS    IN    BAR,    AND    PROCEEDINGS    THEREON    TO    ISSUE    JOINED. 

1.  General  rules,  -  -  -  -        59 

2.  Rules  as  to  pleas  concluding  to  the  country,  -        59 

3.  Plea  of  non-assumpsit,  -  -  -         59 

4.  nil  debet,  -  -  -         59 

5.  Affidavit  denying  execution  of  writing  on  which  action   is 

brought,  -  -  -  -         60 

6.  Plea  of  non  est  factum  by  an  obligor,  with  affidavit  thereto,  61 

7.  by  an  executor  or  administrator,  61 

8.  by  an  administrator,  with  oyer  of  the 

bond,  and  affidavit  that  it  was  de- 
livered as  an  escrow,  -         61 

9.  In  action  upon  judgment  in  another  state,  entered  upon  con- 

fession under  power  of  attorney,  plea  denying  the  execu- 
tion of  the  power  of  attorney  and  the  validity  of  the  judg- 
ment, -  -  -  -        62 

10.  Plea  by  an  administrator,  in  debt  on  collateral  bond,  denying 

causes  of  action  set  forth  in  particular  breaches,      -         63 

11.  of  no  such  record  to  debt  on  judgment  of  another  state 

in  the  union,  -  -  -         63 

12.  of  non  detinet,  -  -  -         64 

13.  of  not  guilty  in  trespass  or  case,  -  -         64 

14.  Course  for  plaintiff  when  plea  concludes  to  the  country,  64 

15.  Similiter  to  one  plea,  and  demurrer  to  another,  -  65 

16.  Rules  as  to  special  pleas,  -  -  -  65 

17.  Plea  against  a  specialty  under  statute  against  usury,  -  66 

18.  act  of  April  16.  1831 ,  with  affi- 

davit, -  -  76 

19.  Another,  -  -  -  -  71 

20.  Another,  -  -  -  -  72 

21.  Pleas  by  common  carrier  to  excuse  the  non-delivery  of  goods,  73 

22.  In  debt  on  a  bounds  bond,  oyer  prayed,  and  plea  of  condi- 

tions performed,     -  -  -  -  75 

23.  Plea  of  conditions  performed  in  other  cases,  -  75 

24.  In  covenant  for  hire  and  clothing,  plea  of  covenants  performed,  76 

25.  In  debt  on  bond,  plea  of  payment  before  action  brought,  of 

principal  and  interest  mentioned  in  condition,  -         76 


XU  TABLE    OF    CONTENTS. 

26.  In  debt  on  bond,  plea  by  surety  that  creditor  was  required  to 

sue,  and  failed  to  do  so,  -  -  -  76 

27.  Another  plea  under  same  statute,  -  -  77 

28.  Accord  and  satisfaction,  -  -  -  77 

29.  Former  judgment  upon  same  matter,  -  -  78 

30.  Plea  that  action  was  not  commenced  in  time,  to  an  ordinary 

action,  -  -  -  -        78 

31.  Like  plea  to  action  on  store  account,  -  -        79 

32.  against  executor  or  administrator  on  open 

account,  -  -         79 

33.  34.  Like  pleas  to  actions  on  specialties,  -  -        79 
35,  36.                                       on  judgments  in  other  states,         -         79 

37.  Concerning  pleas  by  an  executor  or  administrator  in  respect 

to  the  assets,  -  -  -  -         80 

38.  Plea  of  no  assets,       -  -  -  -        80 

39.  no  assets  prcBter,  -  -  -         81 

40.  debts  of  superior  dignity  to  a  greater  amount  than 

the  assets  in  hand,         -  -  -         81 

41.  Plea  that  distribution  has  been  made  of  estate,  and  refunding 

bonds  taken,  -  -  -  -         83 

43.  by  an  heir,  of  riens  per  discent,  -  -         83 

43.  of  tender,  -  -  -  .         -         83 

44.  Concurring  replications,  _  -  -        84 

45.  General  replication  to  plea  of  usury,  -  -        85 

46.  that  action  was  not  commenced 

in  time,  -  -         85 

47.  To  plea  that  action  was  not  commenced  in  time,  'special  re- 

plication to  one  count,  that  account  concerns  the  trade  of 
merchandize  between  merchant  and  merchant ;  and  general 
replication  as  to  two  counts,      -  .-  -         85 

48.  To  plea  that  action  on  store  account  was  not  commenced  in 

two  years,  special  replication  that  party  died  before  the 
two  years  expired,  and  suit  was  brought  in  one  year  from 
his  death,  -  -  -  -         85 

49.  To  plea  that  action  was  not  commenced  in  five  years,  special 

replication  that  plaintiff's  intestate  was  non  compos  till  his 
death,  and  action  was  brought  in  five  years  after  that  time,        86 

50.  To  plea  that  action  was  not  commenced  in  time,  special  re- 

plication that  defendant,  by  removal  out  of  the  country, 
obstructed  the  plaintiff  from  bringing  the  action,  86 

51.  To  plea  of  riens  per  discent,  special  replication  under  the 

statute,  -  -  -  -        87 

52.  Entry  of  office  judgment  set  aside  by  pleading  to  issue,  87 

53.  Entry  at  the  time  of  pleading  non  assumpsit,  nil  debet,  or 

non  detinet,  of  affidavit  as  to  signature  to  writing,  88 

54.  Entry  of  plea  of  non  est  factum,  and  issue  thereon,  88 

55.  Declaration  demurred  to  ore  tenus,  and  joinder  in  demurrer,  88 

56.  Plea  ore  tenus  that  action  was  not  commenced  within  five 

years,  general  replication  thereto,  and  issue,  -         89 

57.  Entry  of  plea  in  writing  being  filed  alleging  payment,  and  of 

replication  thereto,  and  issue,  -  -        89 


TABLE    OF    CONTENTS.  XUl 

58.  Entry  of  plea  in  writing  alleging  performance  of  covenants, 

and  of  replication  thereto,  and  issue,  -  -        89 

59.  Entry  of  replication  being  filed  to  special  plea,  -        89 

60.  to  plea  of  payment  in  action  by  admi- 

nistrator of  a  surviving  partner,  and 

issue  joined,  -  -        89 

61.  to  plea  of  payment,  where  the  condition 

is  not  set  out  in  the  declaration, 
and  oyer  is  not  prayed ;  and  joinder 
of  issue,  -  -         90 

62.  Entry  of  rejoinder  being  filed  to  special  replication,  -         90 

63.  of  issue  made  up  on  rejoinder,  -  -  90 

64.  of  agreement  to  prevent  special  pleading,  -  90 

65.  of  plea  filed,  demurrer  thereto,  and  joinder,  -  90 

66.  of  account  of  set-offs  being  filed  with  plea,  -  91 

67.  of  plea  of  tender,  and  money  brought  into  court,  -  91 

68.  Entry  of  special  pleas  being  filed  under  act  of  April  16. 

1831,      -  -  -        91 

69.  being  tendered  under  said  act,  and 

not  received  for  want  of  proper  af- 
fidavit,    -  -  -         91 

70.  under  said  act  being  rejected  because 

not  offered  in  time,     -  -         91 

71.  under    said    act    being    rejected    as 

naught,  -  -         92 

72.  Entry  of  demurrer  to  two  pleas  under  said  act,  with  joinder ; 

and  general  replication  to  third  plea,  with  issue,  -         92 

73.  Additional  plea  offered,  and  objected  to,  but  allowed  to  be 

filed,  -  -  -        92 

74.  rejected  because  delayed  too  long,  -        92 

75.  rejected  because  the  matter  thereof  is  alrea- 

dy in  issue,       -  -  -         93 

76.  pleas  rejected,  and  opinion  of  court  excepted  to,  93 

77.  Improper  plea  set  aside,  -  -  -         93 

78.  General  demurrer  filed  to  declaration,  after  other  pleas,       -         93 

79.  Leave  granted  to  amend  declaration,  and  cause  remanded  to 

rules,  -  -  -  -        93 

80.  After  argument  of  a  special  demurrer  to  a  plea,  leave  grant- 

ed to  amend  the  same,  -  -         94 

81.  of  demurrer  to  a  replication,  leave  granted 

to  amend  the  same,  -  -         94 

82.  Order  remanding  the  cause  to  the  rules,  for  the  issues  to  be 

made  up,     -  -  -  -        94 

83.  of  continuance  at  the  costs  of  the  party  asking  it^  94 


XIV  TABLE    OF    CONTENTS. 

CHAPTER  XII. 

JUDGMENTS    NOT    ON    VERDICT. 

1.  Entry  of  judgment  in  the  office,  when  it  becomes  final,        -        95 

2.  Where  goods  have  been  attached,  order  accompanying  judg- 

ment, -  -  -  -        95 

3.  Entry  of  judgment  in  the  office,   when  it  becomes  final 

against  one  of  several  defendants,  -  -        95 

4.  Nonsuit  in  an  ordinary  case,         -  -  -        96 

5.  after  jury  are  sworn,  but  before  they  retire,  -        96 

6.  Discontinuance  by  plaintiff,  after  defendant's  appearance,    -  96 

7.  Retraxit,  -  -  -  -  96 

8.  Discontinuance  by  consent,  without  damages  or  costs,         -  96 

9.  Principal  and  interest  brought  into  court,  and  judgment  en- 

tered only  for  costs,  -  -  -        97 

10.  Debt  being  paid  after  suit  brought,  suit  dismissed  at  defen- 

dant's costs,  -  -  -  -         97 

11.  Certificate  of  defendant  in  slander  produced  and  recorded 

by  consent,  and  suit  dismissed  at  defendant's  costs,         -         97 

12.  Judgment  upon  confession  in  court,  in  debt  on  bond  or  bill 

penal,  -  -         97 

13.  for  debt  and  interest  demanded, 

or  for  debt,  interest  and  char- 
ges of  protest  demanded,       -        98 

14.  in  debt  on  single  bill  or  promis- 

sory note,  where  no  interest  is 
demanded,  -  -        98 

15.  in  assumpsit  or  covenant,  -         98 

16.  in  debt  on  bond  wijth  collateral 

condition,  -  -         99 

17.  in  detinue,  -  -         99 

18.  in  action  of  tort,   -  -         99 

19.  Confession  of  judgment,  with  stay  of  execution,  -       100 

20.  Where  the  judgment  confessed  is  by  an  executor  or  admi- 

nistrator,  -  -  -  -       100 

21.  the  suit  is  against  several  defendants,  and  the  action 

is  confessed  by  one,       .  _  -  100 

22.  Power  of  attorney  for  confessing  judgment,     -  -  100 

23.  Entry  of  judgment  confessed  under  a  power  of  attorney,     -  101 

24.  In  action  of  debt  against  an  heir,  he  acknowledges  the  ac- 

tion and  shews  the  lands  which  he  has  by  descent,  and 

judgment  is  entered  to  be  levied  of  those  lands,  -  101 

25.  Submission  of  a  controversy  to  arbitrators,       -  -  102 

26.  Affidavit  of  the  execution  of  the  submission,   -  -  102 

27.  Rule  of  court  upon  submission,    -                     -  -  103 

28.  Return  of  award  made  in  pursuance  of  such  submission,  -  103 

29.  Award  entered  up  as  the  judgment  of  the  court,  -  103 

27.  Order  referring  to  arbitrators  a  pending  suit,    -  -       103 

28.  of  reference  set  aside,        -  .  -       103 

29.  Another  order  of  reference  in  a  pending  suit,  -       104 


TABLE    OF    CONTENTS.  XV 

30.  Award  returned,  and  judgment  pursuant  thereto,  -      104 

31.  Judgment  of  a  justice  of  the  peace,  for  money,  affirmed  on 

appeal,  -  -  -  -       104 

32.  upon  appeal  from  decision  of  a  justice  as  to  the 

title  of  property  taken  under  an  execution  up- 
on a  warrant,  _  -  -       105 

33.  Opinion  upon  demurrer  to  declaration  containing  several 

counts,  some  of  which  are  good,       106 

34.  to    a    count,   containing    several 

breaches,  one  of  which  is  well 
assigned,  -  -       106 

35.  to  a  declaration  or  count,  contain- 

ing a  demand  of  several  mat- 
ters, which  are  divisible,  and 
one  of  which  is  well  claimed,  106 

36.  to  a  declaration,  in  which  there  is 

a  misjoinder  of  counts,  -       106 

37.  Where  defendant  has  demurred  and  pleaded,  judgment  over- 

ruling his  demurrer,         -       106 

38.  without  pleading,  judgment 

overruling  his  demurrer, 

and  allowing  him  to  plead,       107 

39.  without    pleading,    and   his 

demurrer  being  overrul- 
ed, final  judgment  is  en- 
tered, -  -       107 

40.  Final  judgment  in  favour  of  a  defendant  upon  his  demurrer 

to  the  declaration,  -  -  -       107 

41.  After  opinion  in  favour  of  defendant  upon  his  demurrer, 

joinder  withdrawn,  and  leave  to  amend,       -  -       108 

42.  Judgment   for   defendant   upon    demurrer  to  a  particular 

count,  -  _  .       108 

43.  plaintiff  upon  demurrer  to  a  plea  in  abate- 

ment, -  .  .       108 

44.  defendant  upon  demurrer  to  his  plea  in  abate- 

ment, -  -  -       108 

45.  defendant  upon  demurrer  to  a  plea  in  abate- 

ment, pleaded  by  him  to  particular  counts,       109 

46.  plaintiff  upon  demurrer  to  a  replication  to  a 

plea  in  abatement,  -  -       109 

47.  Another,  where  the  plea  was  bad,  the  court  going  up  to  the 

first  fault,  -  -  -  -       109 

48.  Judgment  for  defendant  upon  demurrer  to  replication  to  plea 

in  abatement,        -  _  .  .       109 

49.  Upon  demurrer  to  plea,  final  judgment  in  favour  of  defen- 

dant because  declaration  was  bad,  -  110 

60.  to  plea,  final  judgment  for  defendant,  plea 

being  adjudged  good,  -  -  110 

51.  Demurrer  to  one  of  defendant's  pleas  sustained,  -  110 

52.  sustained  to  defendant's  only  plea,    -  -       110 


XVI  TABLE    OF    CONTENTS. 

53.  In  debt  on  judgment,  demurrer  to  plea  sustained,  and  judg- 

ment not  being  for  interest,  writ  of  enquiry  awarded,      -       111 

54.  Where  plea  is  only  to  one  count,  demurrer  thereto  over- 

ruled, -  -  -  -       111 

55.  After  court's  opinion  for  defendant  on  demurrer  to  plea, 

plaintiff  allowed  to  withdraw  his  joinder  and  to  reply,    -       111 

56.  Upon  demurrer  to  replication,  final  judgment  in  favour  of 

plaintiff  because  plea  is  bad,    -  -  -       111 

57.  Demurrer  to  replication  overruled,  and  defendant  allowed  to 

make  up  issue  in  fact,  -  -  -       112 

58.  Upon  demurrer  to  replication,  final  judgment  in  favour  of 

defendant,  -  -  -  -       112 

59.  Plea  being  to  one  count,  judgment  for  defendant  upon  his 

demurrer  to  the  replication  thereto,  -  -       112 

60.  Judgment  upon  demurrer  to  rejoinder  to  replication,  -       112 

61.  for  defendant  upon  demurrer  to  rejoinder  to  repli- 

cation, because  replication  is  bad,  -       113 

62.  Demurrers  filed  to  certain  counts  in  declaration;  sixteen 

pleas  filed ;  demurrers  to  some,  and  issues  in  fact  upon 
others,  -  -  -  -       113 

63.  Defendant  in  last  case  tendered  two  other  pleas  which  were 

refused;  demurrers  to  certain  counts  in  the  declaration, 

and  to  certain  pleas,  argued;  and  judgment  thereupon,         113 

64.  Four  pleas  tendered,  but  first,  third  and  fourth  only  received ; 

replication  to  first  and  fourth,  and  issues ;  replication  al- 
so to  third,  rejoinder  thereto,  and  demurrer  to  rejoinder ; 
judgment  for  plaintiff  on  demurrer ;  and  verdict  for  him 
on  other  issues,     -  -  -  -       114 

65.  After  writ  of  enquiry  awarded,  damages  assessed  by  the 

court,  and  final  judgment  rendered,  -  -       116 

CHAPTER  XIII. 

TRIAL    BY   JURY. 

1.  Order  directing  jurors  to  be  summoned  for  a  subsequent 

day,  -  -  -  -        116 

2.  Sheriff  being  interested,  order  directing  coroner  to  summon 

jury,         -                     -                     -                     -  116 
8.               and  coroner  being  interested,  order  appointing  a  per- 
son to  summon  a  jury,                     -                     -  116 

4.  Oath  of  jury  to  try  an  issue,        -  -  -  116 

5.  jury  to  enquire  of  damages,  -  -         116 

6.  witness  on  the  voir  dire,  -  -         116 

7.  witness  in  chief,  -  -  -         117 

8.  Solemn  affirmation  by  juror  or  witness,  -  -         117 

9.  Authentication  entitling  record  of  one  state  to  be  admitted 

as  evidence  in  another,  -         117 

10.  a  power  of  attorney  or  deed  from 

another  state  to  be  received  as 
evidence  in  Virginia,  -         118 


119 


TABLE    OF    CONTENTS.  XVll 

11.  Protest  of  an  inland  bill  of  exchange,  -  -         118 

12.  a  foreign  bill  of  exchange,  -  -         118 

13.  Notice  of  dishonour,  -  -  -         118 

14.  Protest  and  affidavit  under  acts  of  Jan.  28. 1829  and  Feb.  3. 

1834,  ....        119 

15.  Bill  of  exceptions  by  defendant  to  opinion  of  circuit  court, 

admitting  note  as  evidence,  which  he 
had  objected  to  on  the  ground  of  va- 
riance,    -  -  - 

16.  by  plaintiff  to  opinion  of  county  court, 

admitting  evidence  offered  by  the 
defendant,  -  -         119 

17.  by  defendant  to  opinion  refusing  instruc- 

tion asked  for  by  him,  -  120 

18.  Entry  of  the  bill  of  exceptions,  -  -  120 

19.  Demurrer  to  evidence,  ...  121 

20.  Joinder  by  defendant  in  plaintiff's  demurrer  to  evidence,  121 

21.  by  plaintiff  in  defendant's  demurrer  to  evidence,  121 

22.  Entry  where  there  is  a  demurrer  to  evidence,  -         121 

23.  Jury  sworn,  and  having  partly  heard  the  evidence,  adjourned,     122 

24.  having  further  heard  the  evidence,  again  adjourned,  122 

25.  having  fully  heard  the  evidence,  sent  out,  and  not  agree- 

ing, juror  withdrawn  and  cause  continued,  -         122 

26.  having  fully  heard  the  evidence,  sent  out,  and  not  agree- 

ing, adjourned,  ...         123 

27.  who  had  once  retired,  appeared  after  adjournment,  and 

after  again  retiring,  returned  a  verdict,  -         123 

28.  Entry,  where  one  of  the  jury,  ijistead  of  taking  an  oath, 

makes  a  solemn  affirmation,  -  -         123 

CHAPTER  XIV. 

VERDICT    AND    JUDGMENT. 

1.  Verdict  on  writ  of  enquiry,  except  in  detinue,  -       124 

2.  on  writ  of  enquiry  in  detinue,  -  -       125 

3.  upon  issue  or  issues,  where  the  finding  is  general  and 

not  extended  into  form,  -  -       125 

4.  upon  issue  or  issues,  where  the  finding  responds  to 

the  same,  or  is  extended  by  the  clerk  into  form,         125 

5.  for  plaintiff  in  action  against  officer  for  an  escape, 

to  which  not  guilty  is  pleaded,       -  -         126 

6.  for  plaintiff  on  plea  of  no  assets,       -  -         126 

7.  ^  of  debts  of  superior  dignity  to 

a  greater  amount  than  the  as- 
sets in  hand,  -         127 

8.  in  action  of  debt  against  an  heir,  upon  replication 

under  the  statute  to  plea  of  riens  per  discent,  127 

9.  where  one  of  the  defendants  is  a  devisee  who  had 

aliened,  and  the  replication  is  similar,  127 

iii 


XVlll  TABLE    OF    CONTENTS. 

10.  Verdict  allowing  interest  and  fixing  period  at  which  it  shall 

commence,  .  -  _         127 

11.  Where  rate  of  interest  is  governed  by  the  laws  of  another 

state,  -  -  -  -         128 

12.  Verdict  for  plaintiff  in  debt  upon  a  penal  obligation,  -         128 

13.  assessing  damages  for  detention,  where  principal  and 

interest  exceed  the  penalty,  -  -         128 

14.  Verdict  for  plaintiff  in  debt  upon  a  note  or  single  bill,  128 

15.  on  note,  responding  to  plea  of 

nil  debet,         -  -         128 

16.  on   single   bill,   responding  to 

plea  of  payment,  -         129 

17.  on  a  bond  with  collateral  condi- 

tion, -  -         129 

18.  Verdict  for  plaintiff  in  covenant,  -  -         129 

19.  in  assumpsit,  -  -         129 

20.  responding  to  plea  of  non  assumpsit,  130 

21.  for  defendant  responding  to  plea  of  non  assumpsit  as 

to  part,  and  tender  as  to  residue,     -  -         130 

22.  Response  in  favour  of  defendant  as  to  tender  of  part,  and  in 

favour  of  plaintiff  upon  plea  of  non  assumpsit,  -         130 

23.  Response  in  assumpsit  to  plea  of  infancy,  -         130 

24.  Verdict  in  action  of  assumpsit  for  sterling  money,  assessing 

damages  in  current  money,         -  -  131 

25.  for  plaintiff  in  detinue,  responding  to  plea  of  non 

detinet,  -         '  -  -         131 

26.  for  plaintiff  in  action  for  a  tort,  -  -         131 

27.  where  there  is  a  demurrer  to  evidence,  assessing  da- 

mages conditionally,  -  -         131 

28.  where  evidence  is  demurred  to  in  detinue,  assessing 

price  and  damages  conditionally,  -  132 

29.  Special  verdict,        -  -  -  -  132 

30.  Entry  of  special  verdict,  _  .  .  132 

31.  Special  verdict  set  aside,  and  venire  de  novo  awarded,         -  133 

32.  Verdict  for  plaintiff,  subject  to  opinion  on  a  point  reserved,  133 

33.  reserving  point  set  aside,  and  venire  de  novo  awarded,    133 

34.  Case  agreed  in  lieu  of  a  special  verdict,  -  -         133 

35.  set  aside,  _  -  .         133 

36.  Motion  for  new  trial,  and  part  of  damages  being  released, 

motion  overruled,       -  -         133 

37.  granted,  -  -         134 

38.  Where  some  defendants  are  convicted  and  others  acquitted, 

new  trial  granted  the  convicted  defendants,  -         134 

39.  Where  damages  are  assessed  against  one  defendant   who 

made  default,  and  the  others  having  pleaded  are  acquitted, 

new  trial  granted  as  to  one  of  the  acquitted  defendants,         134 

40.  Motion  for  new  trial  being  overruled,  opinion  of  court  ex- 

cepted to,  -         135 

41.  granted,  opinion  of  court  excep- 

ted to,  -  -         135 


TABLE    OF    CONTENTS.  XIX 

42.  Judgment  arrested  because  verdict  was  rendered  as  upon  an 

issue,  where  no  plea  had  been  filed,  -  -         135 

43.  Motion  in  arrest  of  judgment  overruled,  and  judgment  for 

plaintiff,  -  -  -  -         136 

44.  Judgment  for  plaintiff,  notwithstanding  failure  to  respond  to 

one  of  the  issues ;  it  being  immaterial,      -  -         136 

45.  Judgment  for  plaintiff,  notwithstanding    verdict  for  defen- 

dant on  one  of  the  issues ;  it  being  immaterial,  -         136 

46.  Verdict  and  judgment  under  act  of  April  16.  1831,  where 

defendant  is  relieved  against 

his  single  bill  in  toto,  136 

47.  same  act,  where  defendant  is 

relieved  against  his  obliga- 
tion in  part,  -         137 

48.  same  act,  where  the  jury  as- 

sess   damages    less    than 
plaintiff's  demand,  137 

49.  same    act,   where    the    jury 

assess  damages  exceeding 
plaintiff's  demand,  137 

50.  Verdict  finding  defendant  guilty  of  dealing  with  a  slave,  and 

judgment  thereupon,  -  -         1^ 

51.  and  judgment  for  plaintiff  in  debt  qui  tarn,  on  plea 

of  nil  debet,  -  -         138 

52.  in  debt  qui  tarn,  for  plaintiff  as  to 

part,  and  for  defendant  as  to  re- 
sidue, -  -         138 

53.  for  overseers  of  poor,  in  debt  on  a 

penal  law,  -  -         139 

54.  Judgment  for  plaintiff  in  debt  on  simple  contract  or  single  bill,     139 

55.  on  a  protested  foreign  bill  of 

exchange,  -         140 

56.  Judgment  on  foreign  bill  of  exchange,  where  it  is  given  for  a 

debt  due  in  current  money  of  this  commonwealth,  or  for 
current  money  advanced  and  paid,  and  the  sum  in  current 
money  that  was  paid  or  allowed  for  the  same  is  not  ex- 
pressed in  such  bill,  .  -  -         140 

57.  Judgment  for  plaintiff  in  debt  on  penal  obligation  for  pay- 

ment of  money,  -         140 

58.  on  penal  obligation  for  ster- 

ling money,  -         141 

59.  in  debt  on  bond  with  collate- 

ral condition,  -         141 

60.  in  debt  on   collateral   bond, 

which  remains  as  a  security 

for  future  damages,  141 

61.  in  debt  on  collateral   bond, 

which  remains  as  a  security 

for  future  instalments,  142 

62.  Judgment  in  debt  on  collateral  bond,  where  the  jury  find 

under  $  6.66  cents,  -  -  -         142 


XX  TABLE    OF    CONTENTS. 

63.  Judgment  for  plaintiflF  in  detinue,  -  -        142 

64.  in  covenant  or  assumpsit,        .         -         143 

65.  in  an  action  for  a  tort,  -         143 

66.  Judgment  in  action  of  assault  and  battery,  or  slander,  where 

less  than  $  16.66  cents  is  found  in  a  circuit 
court,  or  less  than  $  6.66  cents  in  a  county  or 
corporation  court,  -  -         143 

67.  where  the  jury  find  under  $  6.66  cents  in  trespass, 

case,  or  covenant,     -  -  -         143 

68.  de  bonis  in  action  against  personal  representative,        144 

69.  de  bonis  in  action  against  personal  representative, 

with  a  special  agreement  to  prevent  his  being 
charged  beyond  the  assets,  -  -         144 

70.  in  action  against  personal  representative,  to  be  le- 

vied for  part  de  bonis,  and  for  the  residue  when 
assets,  -  -  -         144 

71.  in  action  against  personal  representative,  to  be  le- 

vied for  the  whole  when  assets,   -  -         145 

72.  for   costs  of  personal   representative,   where  the 

plaintiff  has  judgment  against  him  when  as- 
sets,     -  -  -  -         145 

73.  against  a  personal  representative  in  detinue,        -         145 

74.  In  action  on  contract  against  two  defendants,  one  of  whom 

is  discharged,  judgment  against  the  other,  -         145 

75.  Judgment  in  action  of  trespass,  assault  or  false  imprisonment 

against  several,  one  of  whom  is  found  guilty 
[and  another  not,  -  -         146 

76  in  circuit  court  for  plaintiff,  where  verdict  is  for 

less  than  $  50  in  consequence  of  a  set-off,  146 

77.  in  circuit  court  for  defendant  in  assumpsit,  where 

verdict  is  for  less  than  $  50,       -  -         146 

78.  in  circuit  court  for  plaintiff  upon  verdict  for  less 

than  $  50  in  assumpsit   on   special  contract, 
where  damages  are  in  their  nature  uncertain,  147 

79.  in  circuit  court  for  defendant  in  debt  on  single 

bill  or  promissory  note,  where  verdict  is  for  less 

than  $  50  in  consequence  of  payments,  147 

80.  Verdict  shewing  that  a  justice  of  the  peace  had  cognizance, 

plaintiff  non-suited,  _  _  _         148 

81.  Judgment  upon  verdict  found  for  defendant  on  a  plea  in 

abatement,  -  -         148 

82.  found  for  defendant  on  a  plea  in  bar,     148 

83.  Judgment  for  defendant's  costs,  where  plaintiff  is  an  execu- 

tor or  administrator,                     -  -  148 

84.  against  a  relator  after  verdict  for  defendant,  149 

85.  upon  demurrer  to  evidence,            -  -  149 

86.  upon   special  verdict,  points   reserved,   or  case 

agreed,  ...         150 

87.  After  judgment  for  plaintiff,  satisfaction  acknowledged  as  to 

part,  -  -  -  -         150 


TABLE    OF    CONTENTS.  XXI 

88.  The  day  after  the  judgment,  parcel  of  the  damages  released,      150 

89.  After  judgment  for  plaintiff,  agreement  by  him  to  allow  dis- 

counts, -  -  -,  -         150 

90.  Satisfaction  of  judgment  acknowledged  at  a  subsequent  term,     150 

CHAPTER  XV. 

DISTRESS    AND    REPLEVIN, 

1.  Affidavit  to  authorize  a  warrant  of  distress,    -  -  151 

2.  Warrant  of  distress,  -  -  -  151 

3.  Bond  given  by  tenant  upon  suing  out  writ  of  replevin,  -  152 

4.  Writ  of  replevin  by  the  tenant,  -  -  152 

5.  where  the  property  distrained  is  claimed  by 

any  other  than  the  tenant,  -         153 

6.  Certificate  of  justice  that  he  swore  two  freeholders  to  value 

the  property  distrained,  -  _  _         153 

7.  Appraisement  of  the  property  distrained,        -  -         153 

8.  Bond  given  by  claimant  of  distrained  property  upon  suing 

out  writ  of  replevin,  .  -  _         154 

9.  Sheriff's  return  upon  writ  sued  out  by  the  tenant,  -         154 

10.  sued  out  by  claimant  of  distrain- 

ed property,       -  -         154 

11.  Declaration  in  replevin,  -  _  .         155 

12.  Plea  alleging  property  to  be  in  a  third  person,  with  a  sug- 

gestion in  the  nature  of  an  avowry,  -  -         155 

13.  Replication  to  last  plea,  and  similiter,  -  -         156 

14.  Entry  of  issue  made  up  in  replevin  in  a  county  or  corpora- 

tion court,  -  .  -  _         156 

15.  Another  entry  of  issue  made  up  in  replevin,  where  the  de- 

fendant avowed,  -  _  >         I57 

16.  Avowry  of  distress,  _  -  _         157 

17.  Plea  of  non  tenuit,  -  _  _         159 

18.  nothing  in  arrear,  -  _  _         153 

19.  Appearance  for  defendant  in  circuit  court,  and  rule  to  de- 

clare, _  .  .  .         158 

20.  Plaintiff  in  circuit  court  nonsuited  at  the  rules  for  want  of 

declaration,  _  .  -  _         153 

21.  Entry  of  declaration  and  conditional  judgment  at  the  rules 

in  a  circuit  court,  -  -  .         159 

22.  Conditional  judgment  confirmed  at  rules  in  a  circuit  court,        159 

23.  Declaration  filed,  appearance  at  rules  in  circuit  court,  and 

rule  to  plead,       -  -  -  _         159 

24.  Plea  to  declaration  at  rules  in  circuit  court,  and  rule  to  re- 

ply, -        . .     :    .  -  -      159 

25.  Plaintiff  nonsuited  at  rules  in  circuit  court,  for  want  of  re- 

plication, -  »  .  -         159 

26.  Avowry  filed  at  rules  in  circuit  court,  and  rule  to  plead,    -         160 

27.  Plaintiff  nonsuited  at  the  rules  in  circuit  court,  for  want  of 

plea  to  avowry,  ...         \qq 


XXll  TABLE    OF    CONTENTS. 

28.  Plea  filed  to  avowry  at  the  rules  in  circuit  court,  and  rule  to 

reply,  -  -  -  -         160 

29.  Avowant  failing  to  reply,  judgment  entered  for  plaintiff  in 

circuit  court  at  the  rules,        -  -  -         160 

30.  Verdict  and  judgment  for  plaintiff  in  replevin,  -         160 

31.  In  replevin  by  the  tenant,  verdict  for  the  avowant  upon  an 

issue,  and  judgment  thereupon,  -  -         161 

32.  Tenant  being  nonsuit  before  issue  joined,  writ  of  enquiry 

executed,  and  judgment  thereupon,  -  -         161 

33.  In  replevin  by  a  claimant  of  the  property,  verdict  for  defen- 

dant upon  an  issue,  and  judgment  thereupon,  -         161 

34.  Claimant  of  property  being  nonsuit  before  issue  joined,  writ 

of  enquiry  executed,  and  judgment  thereupon,  -         162 

35.  Judgment  for  defendant  against  claimant,  where  the  value  of 

the  property  is  more  than  the  rent,  -  -         162 

CHAPTER  XVI. 

SUITS    FOR    FREEDOM. 

1.  Warrant  issued  by  a  justice  upon  complaint  that  a  person  is 

illegally  detained  as  a  slave,    -  -  -         163 

2.  Bond  required  by  a  justice,  upon  the  appearance  of  the 

possessor  of  one  alleged  to  be  illegally  detained  as  a 
slave,  .  .  -  _         163 

3.  Warrant  of  justice  committing  complainant  to  custody,     -         164 

4.  Petition  to  the  court,  by  person  who  complains  that  he  is  il- 

legally detained  as  a  slave,      .  -  -         164 

5.  Order  assigning  counsel  to  the  petitioner,       -  -         165 

6.  awarding  process  to  answer  the  complaint,  -         165 

7.  of  court  denying  its  interference,  and  directing  no 

process  to  be  issued,      -  -  -         165 

8.  Bond  given  pursuant  to  order  of  court,  to  have  complainant 

forthcoming  to  answer  its  judgment,  -  -         165 

9.  Process  to  answer  the  complaint,  -  -        166 

10.  Declaration,  _  _  -  >         166 

11.  Conditional  judgment,  -  .  >         166 

12.  judgment  confirmed,  and  writ  of  enquiry  award- 

ed,   -  -  -  -  166 

13.  Writ  of  enquiry  executed,  and  judgment  for  plaintiff,        -  167 

14.  Issue  joined,  and  office  judgment  set  aside,  -  167 

15.  Verdict  for  plaintiff  on  the  issue  joined,  and  judgment  there- 

upon, _  -  -         167 

16.  defendant  on  the  issue  joined,  and  judgment 

thereupon,  _  -  -         167 


TABLE    OF    CONTENTS.  XXlll 

CHAPTER  XVII. 

CASES    OP    CAVEAT. 

1.  Summons  issued  on  receiving  a  certified  copy  of  a  caveat,         168 

2.  not  being  executed,  caveat  dismissed  with  costs,         168 

3.  New  summons  awarded,               _  -  -  168 

4.  Oath  of  jury,            -                     -  -  -  169 

5.  Facts  found,             -                     -  -  .              -  169 

6.  Upon  facts  found,  judgment  for  defendant,  -  -  169 

7.  plaintiff,        -  -         169 

8.  defendant,  without  preju- 

dice,        -  -         169 

9.  On  a  caveat  against  a  grant  upon  a  re-survey,  judgment  for 

plaintiff  upon  the  facts 
found,     -  -         170 

a  re-survey,  judgment  for 
defendant  upon  the 
facts  found,  -         170 

CHAPTER  XVm. 

ACTION    OF    EJECTMENT. 

1.  Notice  to  tenant  to  quit,  -  .  _         17X 

2.  Declaration  in  ejectment,  -  .  _         jyj 

3.  Notice  from  the  fictitious  to  the  real  defendant  to  appear  at 

court,    -         172 

4.  to  appear  at 

rules,     -        173 

5.  Affidavit  of  service  on  the  real  defendant,      -  -         173 

6.  Statement  shewing  the  profits  and  damages  which  the  plain- 

tiff means  to  demand,              .  .  -  173 

7.  Conditional  order,                         .  _  -  173 

8.  Judgment  by  default,                    -  _  .  174 

9.  Defendant  made  and  judgment  confessed,  -  -  174 

10.  Person  makes  himself  defendant,  pleads  general  issue,  and 

enters  into  the  common  rule,  -  -         174 

11.  Where  there  are  several  tenants,  who  sever  in  pleading,  and 

each  enters  into  the  consent  rule  for  himself,  -         175 

12.  Order  of  survey,      -  -  -  .         175 

13.  Upon  death  of  lessor,  security  for  costs  required,  -         175 

14.  defendant,  scire  facias  awarded  against  his 

heirs  or  devisees,  -  -         176 

15.  Writ  of  scire  facias  against  heirs  or  devisees,  -         176 

16.  Upon  return  of  scire  facias  executed,  heirs  or  devisees  made 

parties  to  the  action,  .  -                     _  176 

17.  Term  of  demise  enlarged,  -  -                     -  176 

18.  A  new  demise  added,  -  _                     .  177 

19.  Notice  to  plaintiff,  who  claims  under  a  mortgage  which  is 

satisfied,  -  -  -  -         177 


XXIV  TABLE    OF    CONTENTS. 

20.  Notice  to  plaintiff  who  claims  under  a  trust  which  is  sa- 

tisfied, -  -  -  -         177 

21.  Notice  by  (defendant,  who  is  a  vendee,  or  the  heir  of  a  ven- 

dee, entitled  to  specific  execution,  -  -         178 

22.  Special  verdict  returned,  _  .  -         178 

23.  Judgment,  under  the  statute,  for  defendant  entitled  to  a  con- 

veyance of  the  legal  title  from  the  vendor  or  his 
heirs,  -  _  _         173 

24.  against  vendee,  or  heirs  of  vendee,  who  made  de- 

fence under  the  statute,  -  -         179 

25.  General  verdict  for  plaintiff,  and  judgment  thereon,  -         179 

26.  Verdict  for  plaintiff,  assessing  damages  for  mesne  profits ; 

and  judgment  thereon,  -  -         179 

27.  less  land  than  the  quantity  stated  in  the  declara- 

tion, and  judgment  thereupon,  -         180 

28.  General  verdict  for  defendant,  and  judgment  thereon,        -         180 

29.  After  verdict  for  plaintiff,  term  of  demise  enlarged,  and  then 

judgment  entered,  _  _  _         180 

30.  Where  land  is  recovered  west  of  the  Alleghany,  and  defen- 

dant seeks  to  get  the  value  of  his  improvements,  judg- 
ment suspended  till  allegations  can  be  inquired  into,     -         181 

31.  Jury  sworn  to  ascertain  the  additional  value  given  to  the  land 

by  the  improvements;  and  verdict  found,  -         181 

32.  Pending  injunction  to  judgment,  term  of  demise  having  ex- 

pired, rule  to  enlarge  the  same,  -  -         181 

33.  Rule  to  enlarge  term  which  had  expired  pending  injunction, 

made  absolute,  and  writ  of  possession  awarded,  -         182 

CHAPTER  XIX. 

WRITS  OF  RIGHT. 

1.  Writ  o^  prcBcipe  quod  reddat,      -                     -  _  183 

2.  Count,                      -                    -                    -  -  183 

3.  Conditional  order,                         _                     -  _  I83 

4.  Judgment  for  want  of  appearance,                   -  -  183 

5.  Where  the  prmcipe  is  returned  not  found,  if  in  a  circuit 

court,  _  -  -  _  184 

6.  Writ  of  exigi  facias,  and  return  thereon,       -  -  184 

7.  Judgment  for  demandant  upon  return  of  exigi  facias,       -  184 

8.  Where  the  prtBcipe  is  returned  not  found,  if  in  a  county  or 

corporation  court,  _  .  -         184 

9.  Endorsement  by  the  clerk  on  each  new  prcecipe,  -         185 

10.  Return  upon  each  new  prtscipe,                       -  -  185 

11.  Another  new  prcecipe  awarded,                         -  -  185 

12.  Judgment  for  demandant  after  five  precipes,  -  185 

13.  Plea  of  non-tenure,                       .                     .  _  185 

14.  joint  tenancy,  ...         186 

15.  several  tenancy,  -  -  .         186 

16.  demandant's  death  before  suit  brought,  -        186 


TABLE    OF    CONTENTS.  XXV 

17.  Judgment  where  plea  of  non-tenure  is  sustained  as  to  parcel 

of  the  land  demanded,               -  186 

18.  joint  tenancy  is  sustained,             -  186 

19.  joint  tenancy  is  disproved,            -  186 

20.  Demurrer  to  the  count,                _                     _                     -  187 

21.  Plea  in  bar,              -                     -                     -                     -  187 

22.  Replication  to  plea  in  bar,           -                     -                     _  187 

23.  Entry  of  the  mise  being  joined,                       -                     -  187 

24.  Defence  by  other  than  the  tenant,                    -                     -  187 

25.  Rule  made  upon  ascertaining  that  demandant  was  dead  when 

the  suit  was  brought,                _                      -                      _  187 

26.  Scire  facias  awarded  the  heirs  or  devisees  of  demandant,  188 

27.  against  the  tenant's  heirs  or  devisees,  188 

28.  Writ  of  scire  facias  in  favour  of  demandant's  heirs  or  devisees,  188 

29.  against  tenant's  heirs  or  devisees,  188 

30.  Upon  return  of  scire  facias  issued  in  favour  of  heirs  or  de- 

visees   of   demandant,   they 

made  parties  to  the  action,  189 

31.  against  heirs  or  devisees  of  te- 

nant, they  made  parties  to  the 

action,             -                     -  189 

32.  Charge  to  the  recognitors  of  the  assize,          -                     -  189 

33.  General  verdict  for  the  tenant,  and  judgment  thereupon,  189 

34.  demandant,  and  judgment  thereupon,  189 

35.  demandant  for  part,  and  for  tenant  for 

residue  ;  and  judgment  thereupon,  190 

CHAPTER  XX. 


1.  Order  at  the  instance  of  the  heirs,  directing  widow's  dower  to 

be  assigned,         -  -  _     -  -         191 

2.  Assignment  of  widow's  dower  returned,  and  same  established 

by  consent  of  her  and  the  heirs,  -  -         191 

3.  Writ  de  quarentina  hahenda,        -  -  -         191 

4.  of  unde  nihil  hahet,  -  -  -         191 

5.  Count,  -  -  -  -         192 

6.  Plea  that  husband  was  not  seized  of  an  estate  of  inheritance ; 

and  similiter  thereto,        -  -  -         192 

7.  of  jointure  in  lieu  of  dower,  -  -         192 

8.  Verdict  for  demandant  where  the  husband  died  seized,  and 

judgment  thereupon,  -         192 

9.  where  the  husband  has  aliened,  and 

judgment  thereupon,  -         192 

10.  Verdict  for  tenant,  and  judgment  thereupon,  -         192 

iv 


XXVI  TABLE    OF    CONTENTS. 

CHAPTER  XXI. 

UNLAWFUL    ENTRY    OR    DETAINER. 

1.  Complaint  of  unlawful  entry  or  detainer,         -                     -  195 

2.  Affidavit  that  complaint  is  true,                         -                     -  195 

3.  Warrant  to  officer,                         -                     -                     _  195 

4.  Officer's  return  upon  warrant,      .                     -                     -  195 

5.  Court  formed,  jury  impannelled,  evidence  heard,  and  verdict 

returned,              _                     .                     -                     _  196 

6.  Judgment  for  plaintiff,                   ...  195 

7.  defendant,               -                    -                    -  196 

8.  New  trial  granted,                         -                     -                     -  197 

9.  at  regular  term,            -                     -                     -  197 

10.  Court  adjourned  in  consequence  of  jury's  not  agreeing,  197 

11.  Jury  failing  to  agree,  juror  withdrawn,  and  cause  continued 

till  the  next  term,                      .                     .                     -  197 

12.  After  jury  had  failed  to  agree,  new  jury  impannelled  at  re- 

gular court,          _                     -                     -                     -  197 

13.  No  court  having  been  formed  on  the  day  appointed,  jury  im- 

pannelled at  the  next  court,                          -                     -  198 

14.  Bills  of  exception  admitted  to  opinions  of  the  court,          -  198 

15.  Certificate  of  counsel  to  procure  suspension  of  the  execution,  198 

16.  Order  directing  execution  of  the  judgment  to  be  suspended,  198 

17.  Bond  given  at  the  time  of  procuring  a  suspension  of  the  ex- 

ecution,               -                     -                     -                     .  199 

CHAPTER  XXn. 

WASTE. 

1.  Summons  in  action  of  waste  by  the  remainderman  against 

tenant  for  life,     -                    -                    -            -        -  200 

2.  Declaration,              .                     .                     -                     _  200 

3.  Attachment  awarded,                    -                     -                     .  201 

4.  Process  of  attachment,                 -                     _                     .  201 

5.  Distress  awarded,                          -                     -                     -  201 

6.  Process  of  distress,                        -                     -                     _  202 

7.  Defendant  not  appearing  upon  the  distress,  judgment  by  de- 

fault, and  process  awarded  to  have  the  waste  enquired  of,  202 

8.  Process  to  have  the  waste  enquired  of,             -                     -  202 

9.  Writ  of  enquiry  returned,  judgment  by  default  set  aside,  and 

issue  joined,        -                     -                     -                     -  203 

10.  Verdict  for  plaintiff  as  to  part,  and  judgment  thereupon,  203 

CHAPTER  XXm. 

PARTITION. 

1.  Summons  on  partition,                 -                    -                    _  205 

2.  Judgment  confessed,                     -                     -                     _  205 

3.  Wnt  de  partitione  facienda,         -                     -                     -  205 

4.  Return  by  sheriff,  and  partition  established,     -                    -  206 


TABLE    OF    CONTENTS.  XXVll 

CHAPTER  XXIV. 

EXECUTIONS. 

1.  Fieri  facias  in  debt,  for  debt  and  costs,  -  -         207 

2.  in  debt,  for  debt,  interest  and  costs,  -  207 

3.  in  debt  qui  tarn,      .  -  -  208 

4.  in  case  upon  a  promise,  for  damages  and  costs,  208 

5.  in  case  upon  a  promise,  for  damages,  interest 

and  costs,  ...  208 

6.  in  covenant,  ...  208 

7.  in  trespass,  .  -  _  208 

8.  in  case  for  a  tort,  -  -  208 

9.  for  plaintiff  in  replevin,  -  -  208 

10.  for  defendant  in  replevin,  against  the  tenant,  209 

11.  for  defendant  in  replevin,  against  plaintiff  who 

was  not  the  tenant,  -  -         209 

12.  for  plaintiff  in  ejectment,  for  his  damages  and 

costs,  -  -  -         209 

13.  for  demandant  in  a  writ  of  right,  for  his  damages 

and  costs,  ...         209 

14.  for  demandant  in  dower,  for  her  damages  and 

costs,  -  -  -         210 

15.  for  damages  recovered  in  action  of  waste,  210 

16.  for  costs  recovered  by  plaintiff  on  complaint  for 

unlawful  entry  or  detainer,  -  210 

17.  for  defendant,  for  costs,  or  for  costs  and  damages,  210 

18.  after  di.ssolution  of  an  injunction,  -  210 

19.  upon   a  judgment  of  a  county  court,  affirming 

a  judgment  of  a  justice  of  the  peace,  211 

20.  upon  a  judgment  against  an  executor  or  admi- 

nistrator, to  be  levied  de  bonis,  -         211 

21.  returnable  to  rules,  -  -         212 

22.  Endorsement  by  clerk  upon  execution  issued  on  a  judgment 

for  a  debt  contracted  before  the  first  of  Au- 
gust 1837,  -  -  -        212 

23.  by  sheriff  upon  f.  fa.  when  it  is  delivered  to 

him  to  be  executed,  -  -         212 

24.  Affidavit  of  a  person  who  wishes  the  benefit  of  the  act  ex- 

empting a  portion  of  the  property  of  poor  debtors,         -         212 

25.  Return  upon  f.  fa.  prescribed  by  statute,      -  -         212 

26.  of  f.  fa.  which  is  levied  upon  goods  on  leased  pre- 

mises whereon  rent  is  reserved,  but  not  due,  213 

27.  o(  f.  fa  which  is  levied  on  goods  on  leased  pre- 

mises whereon  rent  is  in  arrear,      -  -         213 

28.  of  the  levy  of  a  f.  fa.   where  rent  is  claimed,  and 

the  validity  of  the  claim  is  doubted,  -         214 

29.  Indemnifying  bond,  .  -  .         214 

30.  Return  where  plaintiff  refuses  to  give  indemnifying  bond, 

and  property  is  restored,  -  -         215 

31.  where  indemnifying  bond  is  given,     -  -        215 


XXVIU  TABLE    OF    CONTENTS. 

32.  Bond  for  the  forthcoming  of  property  levied  on,  -      '  215 

33.  Return  of  J?,  fa.  levied,  where  a  forthcoming  bond  is  taken, 

and  the  property,  or  some    part  of  it,  is  not  de- 
livered, ...         216 

34.  of  7^-  fa-  levied  on  slaves,  mules,  work-oxen  and  horses,  216 

35.  Writing  of  debtor  authorizing  officer  to  dispense  with  the 

provisions  of  the  act  of  March  3.  1821,     -  -         217 

36.  Return  of  officer,  when  act  of  March  3.  1621,  is  dispensed 

with,        -  -  -  -        217 

37.  where  money  is  received  without  any  levy,  -         218 

38.  where  money  is  received  after  the  return  day,  under 

an  execution  levied  previously,        -  -         218 

39.  where  there  is  an  execution  against  the  goods  and 

chattels  of  the  person  to  whom  the  money  in  the 
officer's  hands  is  payable,  -  -         218 

40.  Order  directing  money  made  under  execution  in  favour  of  a 

person,  to  be  paid  in  satisfaction  of  an  execution  against 

him,  -  -  -  -         218 

41.  Return  where  a  surplus  of  the  proceeds  of  goods  sold  under 

execution  remains  after  satisfying  it,  -         219 

42.  where  property,  of  which  the  sale  is  indemnified,  sells 

for  more  than  enough  to  satisfy  the  execution,  219 

43.  where  the  goods  remain  in  the  sheriff's  hands  until 

an  injunction  is  obtained  to  the  judgment,  219 

44.  where  money  is  received  by  sheriff,  but  an  injunction 

is  obtained  to  the  execution  before  payment  to  the 
plaintiff,  -  -  -        220 

45.  where  goods  remain  in  sheriff's  hands  unsold,  220 

46.  Writ  of  venditioni  exponas,  ...         220 

47.  Venditioni  exponas  to  a  late  sheriff,  -  -         220 

48.  Rule  against  a  late  sheriff  to  shew  cause  why  a  distringas 

should  not  issue  to  compel  him  to  sell,  -         220 

49.  made  absolute,  and  distringas  awarded,  -         221 

50.  Writ  of  distringas  against  a  late  sheriff,  to  compel  him  to  sell,     221 

51.  Venditioni  exponas  for  the  sale  of  property  taken  by  an  of- 

ficer who  died  before  selling  it,  -  -  221 

52.  Writ  of  elegit,         -  -  -  -  222 

53.  Inquisition  under  elegit,  ...  222 

54.  Capias  ad  satisfaciendum  returnable  to  court,  -  222 

55.  returnable  to  rules,  -         223 

56.  Ca.  sa.  after  return  of  no  effects  on  an  execution  issued  by  a 

justice  of  the  peace,  ...         233 

57.  Endorsement  by  creditor  where  execution  is  delivered  to  the 

sheriff  of  any  other  county  than  that  in  which  creditor  re- 
sides, -  -  -  -        223 

58.  Jailor's  notice  to  creditor,  or  his  agent,  of  the  debtor's  im- 

prisonment, ....         223 

59.  Return  of  ca.  sa.  on  which  defendant  is  arrested  and  com- 

mitted to  jail,      ...  -        224 

60.  Affidavit  by  sheriff  that  person  in  execution  has  escaped,  224 


TABLE    OF    CONTENTS.  XXIX 

61.  Warrant  to  retake  person  in  execution  who  has  escaped  from 

prison,  .    -  -  -  -         224 

62.  Note  given  by  jailor  to  the  person  who  delivers  to  him  the 

prisoner  taken  under  the  escape  warrant,  -         225 

63.  Return  of  the  execution  of  the  warrant  to  the  court  of  the 

county  from  which  the  prisoner  escaped,  -         225 

64.  Bond  for  the  forthcoming  of  property  tendered  in  discharge 

of  the  body,  -       '  -  -         225 

65.  Return  of  ca.  sa.  where  debtor  tenders  property  in  discharge 

of  his  body,  ...         226 

66.  Return  of  ca.  sa.  where  debtor  discharges  his  body  by  pay- 

ing the  money,  -  _  -         226 

67.  Order  for  marking  and  laying  out  the  bounds  and  rules  of 

the  prison,  -  .  -  226 

68.  Bounds  and  rules  of  the  prison  adopted,  -  -  226 

69.  Prison  bounds  bond,  ...  227 

70.  Return  where  prisoner  is  admitted  to  the  bounds,  -  227 

71.  Warrant  to  retake  prisoner  who  has  escaped  from  the  bounds,  227 

72.  Notice  to  creditor,  of  escape  from  the  bounds,  -  228 

73.  Sheriff's  assignment  to  creditor,  of  bounds  bond,  -  228 

74.  Warrant  to  take  person  who  failed  to  render  his  body  to  pri- 

son according  to  condition  of  bounds  bond,  -         228 

75.  Return  of  ca.  sa.  where  debtor  is  discharged  out  of  custody 

upon  obtaining  an  injunction,  -  -         228 

76.  Warrant  of  justice  directing  jailor  to  bring  insolvent  debtor 

before  him  or  some  other  justice,  -  -         229 

77.  Notice  that  person  intends  to  take  the  oath  of  an  insolvent 

debtor,                 -                    -                    -  -  229 

78.  Schedule  of  insolvent,                  -                     -  -  229 

79.  List  of  executions,                        _                     _  -  230 

80.  Oath  of  insolvent  debtor,             -                     -  -  230 

81.  Conveyance  of  the  real  estate  mentioned  in  the  schedule,  230 

82.  Warrant  for  insolvent's  discharge,                     -  -  231 

83.  Return  of  ca.  sa.  where  debtor  is  discharged  by  taking  oath 

of  insolvency,     -  -  -  -         231 

84.  Entry  where  oath  of  insolvency  is  taken  in  court,  -         232 

85.  Summons  against  a  person  stated  tcT  be  indebted  to,  or  to 

have  estate  of,  insolvent,         -  -  -         232 

86.  Judgment  by  default  against  a  person  stated  to  be  indebted 

to  insolvent,         -  .  -  .         233 

87.  New  summons  awarded  against  a  person  stated  by  an  insol- 

vent to  be  his  debtor,  .  _  .         233 

88.  Defendant  appeared  according  to  summons  in  last  case,  and 

summons  dismissed,  -  -  _         233 

89.  Ca.  sa.  directed  to  issue  against  a  person  who  has  been  dis- 

charged as  an  insolvent  debtor,  -  -         234 

90.  JFV.  fa.  awarded  against  the  goods  acquired  by  a  person  after 

taking  the  oath  of  insolvency,  -  -         234 

91.  Return  of  ca.  sa.  where  debtor  is  discharged  for  non-pay- 

ment of  jail  fees,        -  -  -  -        234 


XXX  TABLE    OF    CONTENTS. 

92.  Return  of  ca.  sa.  where  debtor  was  discharged  by  tender- 

ing property  which  proved  to  be  under  incumbrance,     -         235 

93.  Endorsement  on  new  execution,  to  shew  that  property  had 

been  tendered  under  a  ca.  sa.  which  was  incumbered,  235 

94.  Debtor  dying  iu  execution,  new  execution  against  his  goods 

and  chattels,      -  -         235 

95.  new  execution  against  his  lands 

and  tenements,  -         236 

96.  Extendi  facias  against  an  heir,  after  judgment  on  bond  of 

ancestor,  _  -  .  >         237 

97.  Distringas  against  a  corporation,  -  -         238 

98.  in  detinue,  -  -  -         238 

99.  Fi.  fa.  in  detinue,  for  damages  and  costs,  in  the  same  writ 

with  the  distringas,  _  _  _         239 

100.  Ca.  sa.  in  detinue,  for  damages  and  costs,  along  with  the 

distringas,  -  -  -  -         239 

101.  Distringas  directed  to  be  superseded  as  to  specific  thing, 

and  executed  for  the  alternative  value,        -  -         239 

102.  Alternative  value,  not  being  rendered  to  plaintiff,  feri  fa- 

cias, elegit  or  ca.  sa.  allowed  to  issue,         -  -         239 

103.  Writ  of  possession  after  judgment  for  plaintiff  in  eject- 

ment, -  .  .  .        240 

104.  Writ  of  seisin  after  judgment  for  demandant  in  a  writ  of 

right,         -  -        240 

105.  for    demandant    in    dower, 

where  the  husband  died 
seized,       -  -        241 

106.  for    demandant    in    dower, 

where   the   husband   had 
aliened,      -  -         241 

107.  Writ  of  possession  after  judgment  for  plaintiff  upon  com- 

plaint of  unlawful  entry  or  detainer,  -         242 

108.  seisin  after   judgment  for   plaintiff  in   action   of 

waste,  -  -  -        242 

109.  Execution  upon  judgment  against  principal  and  sureties, 

quashed  on  motion  of  sureties,  and  exceptions  filed  by 
plaintiff,  -  -  -  -         242 

110.  Another  case  of  an  execution  upon  judgment  against  prin- 

cipal and  surety,  quashed  on  surety's  motion,  -         243 

111.  Order  upon  defendant's  motion  to  quash  execution  issued 

by  a  justice  of  the  peace,       _  -  -         244 

112.  Order  on  plaintiff's  motion,  quashing  execution  and  forth- 

coming bond  taken  under  it,  and  allowing  him  to  sue  out 

new  execution  on  the  original  judgment,  -         244 

113.  New  execution  directed  to  issue,  -  -        244 


TABLE    OF    CONTENTS.  XXXI 

CHAPTER  XXV. 

SCIRE    FACIAS    AFTER    JUDGMENT    OR    UPON    RECOGNIZANCE. 

1.  Scire  facias  where  execution  has  not  issued  within  the 

year,  .  -  _        245 

2.  upon  death  of  plaintiff,  for  his  executor  or  ad- 

ministrator to  have  execution,  -         245 

3.  upon  death  of  defendant,  to  have  execution 

against  his  executor  or  administrator,        -         246 

4.  upon  the  death  of  a  party  whose  estate  is 

committed  to  a  sherift',  -  -         246 

5.  Upon  a  judgment  in  detinue  against  a  decedent,  scire  facias 

against  his  executor  or  administrator,  247 

6.  in  ejectment,  scire  facias   against  defen- 

dant's heir,  -  -         247 

7.  for  money,  scire  facias  against  heirs  and 

terretenants,  to  have  execution  of  the 
lands,  -  -  -         248 

8.  Scire  facias  by  administrator  de  bonis  non,  -         248 

9.  against  administrator  de  bonis  non,  -         249 

10.  where  feme  plaintiff  marries  after  judgment,  249 

11.  where  feme  defendant  marries  after  judgment,         250 

12.  where  feme  plaintiff  marries  after  judgment, 

and  is  survived  by  her  husband,  who  dies  be- 
fore execution,  -  -        250 

13.  where,  after  judgment  for  husband  and  wife, 

husband  is  survived  by  his  wife,  who  dies  be- 
fore execution,  -  -         250 

14.  where,  after  judgment,  plaintiff  dies,  and  his 

administratrix  marries,  -  -         250 

15.  On  a  judgment  providing  for  further  breaches,  scire  facias 

setting  forth  such  breaches,  -  -         250 

16.  Scire  facias  on  a  judgment  against  a  personal  representative, 

to  be  levied  quando  acciderint,  -  -         251 

17.  Where  the  sale  of  property  is  indemnified  and  the  value  is 

recovered  from  the  execution  creditor,  scire  facias  to 

have  new  execution,  _  -  -         252 

18.  Where  tenant  by  elegit  is  evicted  of  lands  held  by  extent, 

scire  facias  to  have  new  execution,  -  -         253 

19.  Scire  facias  to  have  execution  against  property  acquired  by 

defendant  after  taking  oath  of  insolvency,  253 

20.  to  have  execution  against  the  property  of  a 

debtor  discharged  on  account  of  the  credi- 
tor's failure  to  pay  the  jail  fees,  -         254 

21.  upon  recognizance  of  a  surety  for  costs,        -         254 

22.  upon  recognizance  of  special  bail  taken  by  a 

sheriff,  -  -      '  -        255 

23.  upon  recognizance  of  special  bail  taken  by  a 

judge  or  justice  of  the  peace,  -        256 


XXXll  TABLE    OF    CONTENTS. 

24.  Scire  facias  upon    recognizance   of  special   bail  given  in 

court,  -  _  -         257 

25.  against  special  bail  in  detinue,  upon  recogni- 

zance taken  by  a  sheriff,         -  -         257 

26.  against  executor  or   administrator  of  special 

bail  in  action  for  debt  or  damages,  -         258 

27.  against  an   officer  who  discharged  defendant 

from  custody  without  taking  bail,  or  without 
returning  recognizance,  -  -         259 

28.  Where  bail  taken  by  an  officer  is  adjudged  insufficient,  scire 

facias  against  the  bail  and  the  officer  as  joint  cognizors,       259 

29.  Scire  facias  on  recognizance  to  keep  the  peace,  -         260 

30.  on  recognizance  to  appear   and   answer  a  fe- 

lony, -  -  -        261 

31.  on  recognizance  of  witnesses  to  appear   and 

give  evidence,     -  -  -         261 

32.  Return  of  executed  upon  scire  facias  against  special  bail  re- 

turnable in  term  time,  -  -         262 

33.  nihil  upon  scire  facias,  -  -         262 

34.  Other  returns  upon  scire  facias,  -  -         262 

35.  Alias  scire  facias  awarded,         -  -  -         262 

36.  Scire  facias  for  renewal  of  a  judgment  being  returned  exe- 

cuted, execution  awarded,      -  -  -         262 

37.  Where  the  scire  facias  is  to  renew  a  judgment  in  eject- 

ment, -  _  .  _        262 

38.  Where   judgment  was   against  decedent  and  execution  is 

awarded  against  executor  or  administrator,  -         263 

39.  Upon  scire  facias  to  revive  judgment  in  detinue  against  de- 

cedent, award  of  execution  against  executor  or  adminis- 
trator, -  .  _  .        263 

40.  Award  upon  scire  facias  assigning  new  breaches,  -         263 

41.  of  execution,  at  the  suit  of  the  governor  of  the  com- 

monwealth, upon  a  recognizance,  -         263 

42.  of  execution  on  a  scire  facias  against  special  bail  in 

debt,         -  -  -  -        264 

43.  of  execution  on  a  scire  facias  against  special  bail  in 

detinue,  -  -  -         264 

44.  Return  of  scire  facias  against  special  bail  amended,  -         264 

45.  Where,  upon  recognizance,  scire  facias  issued  against  two, 

and  both  died,  process  to  revive  awarded  against  repre- 
sentative of  last  survivor,        -  _  -         265 

46.  Entry  of  demurrer  to  scire  facias  and  joinder  therein,       -         265 

47.  plea  of  no  such  record,  and  general  replication 

thereto,  _  _  .         265 

48.  Oyer  of  record ;  demurrer  to  scire  facias ;  and  joinder,  266 

49.  Plea  that  execution  had  not  issued,  and  scire  facias  was  not 

sued  out  within  ten  years,        .  -  -         266 

50.  Where  execution  had  issued  but  no  return  was  made,  plea 

that  ten  years  had  elapsed,      -  -  -         266 

51.  Another  plea  under  same  statute,  more  briefly  drawn,         -         267 


TABLE    OF    CONTENTS.  XXXlll 

52.  Plea  under  same  statute  by  an  executor  or  administrator,  to 

a  scire  facias  issued  to  revive  a  judgment  obtained  against 
decedent,  -  -  -  -         267 

53.  Plea  by  executor  or  administrator  that  scire  facias  was  issued 

against  him  after  the  expiration  of  five  years  from  his  qua- 
lification, _  -  _  .         267 

54.  Entry  of  plea  of  payment,  with  general  replication  and  issue; 

and  office  judgment  set  aside,  -  -         267 

55.  Entry  of  judgment  in  the  office,  when  it  becomes  final,      -         268 

56.  On  a  scire  facias  assigning  new  breaches,  damages  assessed, 

and  judgment  for  plaintiff,       -  -  .         268 

57.  Special  bail  surrendering  principal  after  scire  facias,  judg- 

ment against  him  for  the  costs,  -  -         268 

58.  Entry  of  judgment  where  there  is  a  confession,  -         269 

59.  Judgment  on  plea  of  no  such  record,  where  that  is  the  only 

plea,  -  -  -         269 

60.  for  plaintiff  where,  besides  no  such  record,  there 

is  a  second  plea,      -  -  -         269 

61.  for  defendant  where  issue  is  found  for  him,        -         269 

62.  Fieri  facias  after  award  of  execution  upon  scire  facias  re- 

newing judgment  for  debt  or  damages,       -         269 

63.  after   award  of  execution   against  executor  or 

administrator  upon  scire  facias  reviving  judg- 
ment rendered  in  decedent's  lifetime,  -         270 

64.  after  award  of  execution  in  favour  of  executor 

or  administrator  upon  scire  facias  reviving 
judgment  obtained  by  decedent,  -         270 

65.  Elegit  after  award  of  execution  against  an  heir,  upon  scire 

facias  reviving  against  him   judgment  rendered 
against  his  ancestor,  -  -         271 

66.  Distringas  and  f.  fa.  after  award  of  execution  against  an 

executor  or  administrator,  upon  scire  facias  reviving  judg- 
ment in  detinue  rendered  against  his  decedent,  -         271 

67.  Fieri  facias  after  award  of  execution  upon  recognizance  of 

special  bail  in  action  for  debt  or  damages,  -         272 

68.  Execution  after  award  thereof  upon  recognizance  of  special 

bail  in  detinue,        -  -  -         273 

69.  for  the  commonwealth,  upon  a  recognizance  against 

the  goods  and  chattels,  lands  and  tenements,  273 

f 

CHAPTER  XXVI. 

MOTIONS    FOR    JUDGMENT    AND    AWARD    OF    EXECUTION. 

1 .  Notice  of  motion  on  forthcoming  bond,  -  -         274 

2.  Defendants  not  appearing,  award  of  execution  by  default,  274 

3.  Entry  where,  after  execution  of  forthcoming  bond,  an  injunc- 

tion was  obtained,  and  the  same  being  dissolved,  damages 

are  included  in  the  judgment,  -  -         275 

4.  Execution  awarded  by  consent  on  forthcoming  bond,  -         275 

V 


XXXIV  TABLE    OF    CONTENTS. 

5.  Order  quashing  execution  and  forthcoming  bond  bec3.use  of 

defects  in  execution,  -  -         275 

6.  forthcoming  bond  as  faulty,  -         275 

7.  Sheriff's  return  on  execution  amended,  by  stating  that  super- 

sedeas was  received  before  day  of  sale;  and  thereupon 
motion  overruled,  -  -  -         276 

8.  Continuance  of  motion,  _  -  -         276 

9.  Non  est  factum  pleaded ;  issue  joined ;  verdict  for  plaintiff; 

and  judgment,  _  -  -         276 

10.  Motion  heard,  and  continued  for  court  to  consider  of  its  judg- 

ment, -  -  -  -        277 

11.  After  time  taken  to  consider,  judgment  for  defendant  upon 

the  merits,       -        277 

12.  for    plaintiff   upon 

the  merits,       -        277 

13.  Entry  of  exceptions  to  judgment,  -  -        277 

14.  Bond,  where  goods  are  distrained  for  rent,  and  restored  to 

the  debtor,  to  pay  at  the  end  of  three  months,  -         277 

15.  Where  sale  is  made  of  goods  distrained,  bond  of  the  buyer 

to  pay  at  the  end  of  three  months,  -  -         278 

16.  Notice  of  motion  on  three  months  bond  given  by  owner  or 

buyer  of  goods  distrained,  -  -  279 

17.  Entries  upon  motions  on  three  months  bonds,  -  279 

18.  Notice  of  motion  by  surety  against  principal,  -  279 

19.  Judgment  for  surety,  on  motion  by  him  against  principal,  279 

20.  on  motion  by  him  against  executor  or 

administrator  of  principal,  -         280 

21.  Fi.  fa.  after  judgment  for  surety  on  motion  by  him  against 

principal,  -  -         280 

22.  for  surety  on  motion  by  him  against 

executor  or  administrator  of  prin- 
cipal, -  -  281 

23.  Notice  of  motion  by  surety  against  cosurety,      -  -  281 

24.  Judgment  for  surety,  on  motion  by  him  against  a  cosurety,  281 

25.  on  motion  by  him  against  executor  or 

administrator  of  cosurety,  -         282 

26.  Notice  of  motion  by  bail  against  principal,     -  -         282 

27.  by  a  turnpike  company  against  a  delinquent 

stockholder,  -  -         282 

28.  by  the  Mutual  assurance  society  against  a 

person  insured,  for  quotas,  -         283 

29.  by  president  and  directors  of  literary  fund 

against  treasurer  of  school  commission- 
ers and  his  sureties,         -  -         284 

30.  by  jailor  against  creditor  for  jail  fees,  284 

31.  Another  notice  of  motion  for  jail  fees,  against  creditor  who 

resides  out  of  the  county,  and  has  no  agent  in  it,  -         285 

32.  Notice  of  motion  by  creditor  against  debtor  for  jail  fees,  286 

33.  by  client  against  attorney  for  money  received,  286 

34.  by  overseers  of  the  poor  against  a  prede- 

cessor in  ofhce,  -  -        286 


TABLE    OF    CONTENTS.  XXXV 

35.  Notice  of  motion  against  sheriff  and  sureties  for  poor  rates 

collected,  -  -        287 

36.  against  sheriff  for  failing  to  pay  county  levy,     287 

37.  against  sheriff  for  failing  to  render  account 

of  county  levy,  -  -         288 

38.  against  an  officer  for  clerk's  fees  collected,      288 

39.  against  an  officer  for  not  returning  an  exe- 

cution,        -                     -                     -  289 

40.  Judgment  on  motion  against  officer  for  not  returning  execution,  290 

41.  Fi.  fa.  on  judgment  against  officer  for  not  returning  execution,  290 

42.  Notice  of  motion  against  officer  for  not  returning  forfeited 

forthcoming  bond,  -  -         290 

43.  against  officer  for  not  returning  the  sche- 

dule of  an  insolvent  debtor,  -         291 

44.  against  officer  for  not  returning  account  of 

sales  of  insolvent's  effects,  -         291 

45.  for  not  returning  account  of  sales  of  goods 

sold  under  execution,       -  -         291 

46.  by  creditor  against  officer  for  money  re- 

ceived under  execution,  -         292 

47.  Judgment  for  sheriff's  costs,  where,  after  notice  by  creditor, 

motion  was  not  made,  -  -         293 

48.  on  motion  by  creditor  against  officer  for  money 

received  under  execution,  -  -         293 

49.  on  motion  by  creditor  against  officer  for  suffering 

a  debtor  to  escape,  -  -         293 

50.  Fi.  fa.  after  judgment  by  creditor  against  officer  for  money 

received  under  execution,  -  -         293 

51 .  after  judgment  by  creditor  against  officer  for  suffer- 

ing debtor  to  escape,  -  -         294 

52.  Notice  of  motion  against  officer  and  sureties  for  surplus  ari- 

sing from  sale  under  execution,  -         294 

53.  against  officer  for  money  arising  from  the 

sale  of  an  insolvent's  estate,  -         294 

54.  Judgment  on  motion  against  officer  for  money  arising  from 

the  sale  of  an  insolvent's  estate,  -  -         295 

55.  Notice  of  motion  against  officer  for  money  or  goods  received 

under  summons  against  the  garnishee  of  an  insolvent,  295 

56.  Where  the  court  ascertains  the  value,  in  money,  of  rent  re- 

served in  any  thing  other  than  money,  and  property  dis- 
trained for  such  rent  is  sold,  notice  of  motion  against  offi- 
cer for  the  proceeds,  -  -  -         296 

57.  Notice  of  motion  by  sheriff  against  deputy,  for  amount  of 

judgment  against  sheriff  for  deputy's  misconduct,  -         297 

58.  Judgment  in  favour  of  sheriff  against  deputy  and  his  sureties, 

for  amount  of  judgment  against  sheriff  for  deputy's  default,       297 

59.  Notice  of  motion  by  sheriff  against  deputy,  for  money  re- 

ceived under  execution,  -         298 

60.  by  sheriff  against  deputy  and  his  sureties, 

for  taxes,  -  -        829 


XXXVl  TABLE    OF    CONTENTS. 

61.  Notice  of  motion  by  sheriff  against  administrators  of  deputy, 

for  taxes;  drawn  more  specially  than 

the  last,  -  -        298 

62.  Fi.  fa.  upon  judgment  in  favour  of  sheriff  against  deputy's 

sureties,  for  taxes,  _  _  -         299 

63.  Notice  of  motion  by  sheriff  against  deputy  and  his  sureties, 

for  other  moneys,  -  -         300 

64.  by  sureties  of  sheriff  for  execution  against 

his  lands,  -  -         300 

65.  by  sheriff  for  execution  against  lands  of 

deputy  and  his  sureties,  -         301 

66.  by  sureties  of  deputy  sheriff  for  execution 

against  his  lands,  -  -         301 

67.  Upon  what  executions  the  clerk  shall  endorse  that  no  security 

is  to  be  taken,  -  _  _         301 

CHAPTER  XXVII. 

ATTACHMENTS. 

1.  Bond  taken  where  attachment  is  granted  against  an  abscond- 

ing debtor  for  a  debt  exceeding  $  10  which  has  become 
payable,  -  -  -  -         302 

2.  Attachment  in  such  case,  _  _  _         303 

3.  Bond  to  the  officer  serving  the  attachment,  for  the  purpose 

of  replevying  the  same,  _  -  «         304 

4.  Sheriff's  return  where  attached  effects  are  replevied,  by  giv- 

ing bond  and  security,         -  -         304 

5.  of  levy  where  no  bond  and  security  are  taken 

by  him,  -  -  -         304 

6.  Attachment  dismissed,  because  it  was  issued  without  a  proper 

bond  being  taken,  _  _  _         305 

7.  Garnishee  sworn ;   judgment  against  defendant ;    and  then 

judgment  against  garnishee,  -  -         305 

8.  Plaintiff  alleging  that  garnishee  has  not  discovered  truly,  jury 

impannelled,  and  after  their  verdict,  judgment  against  de- 
fendant, and  then  against  garnishee,  -  -         306 

9.  Judgment  against  a  garnishee  who  owes  more  than  is  suffi- 

cient to  satisfy  the  demand  against  the 
absconding  debtor,  -  -         306 

10.  absconding  debtor,  who  neither  replevies 

nor  makes  defence,  and  order  for  sale 

of  attached  effects,  -  -         306 

11.  Order  where  attached  effects  are  to  be  sold  to  satisfy,  first, 

a  prior  judgment,  and  then  a  subsequent  one,  307 

12.  before  attachment  is  decided,  for  the  sale  of  property 

liable  to  perish,  or  to  become  impaired  in  value,  or 
which  it  may  be  expensive  to  keep,  -         307 

13.'  Attachment  replevied  by  putting  in  bail  in  court,  -         308 

14.  Defendant  admitted  to  make  defence  without  replevying  the 

property  attached,  .  -  _         308 


TABLE    OF    CONTENTS.  XXXVU 

15.  Plea  in  abatement,  _  -  -  308 

16.  Plea  by  claimant  of  the  goods  attached,  -  -  309 

17.  Replication  to  plea  of  claimant,  -  -  309 

18.  Entry  of  claimant's  plea,  and  replication  thereto;  verdict  for 

claimant;  and  judgment  thereupon,  -  -         309 

19.  Verdict,  on  claimant's  plea,  in  favour  of  the  attaching  cre- 

ditor, and  judgment  thereupon,  -  -         310 

20.  Affidavit  to  obtain  attachment,  where  debt  is  under  $  20,  and 

debtor  removes  his  effects,      _  -  -         310 

21.  Attachment  where  debt  is  under  §20,  and  debtor  removes 

his  effects,  _  _  -  -         310 

22.  Affidavit  to  obtain  attachment,  where  debtor  removes  before 

debt  is  payable,  -  .  _         311 

23.  Bond  upon  obtaining  attachment  for  claim  of  $  10  or  up- 

wards, where  debtor  removes  before  debt  is  payable,  311 

24.  Attachment  for  claim  of  §  10  or  upwards,  where  debtor  re- 

moves before  debt  is  payable,  -  -         312 

25.  Another,  where  the  creditor  is  a  mercantile  firm,  -         312 

26.  Bond  given  by  the  debtor  for  the  payment  of  the  debt  when 

it  shall  become  due,  .  _  -         313 

27.  Debtor  not  giving  bond  for  payment  of  debt  when  it  shall 

become  due,  judgment  against  him,  and  order  for  sale  of 
attached  effects,  _  _  -         313 

28.  Judgment  against  debtor  for   amount  to  become  due,  and 

then  judgment  against  garnishee,  -  -         314 

29.  Affidavit  to  obtain  attachment  where  tenant  will  remove  his 

effects  before  rent  will  be  payable,  -  -         314 

30.  Affidavit  where  the  tenant  has  actually  removed  his  effects 

before  the  rent  has  become  due,  -  -         315 

31.  Attachment  where  tenant  will  remove  or  has  removed  his  ef- 

fects before  rent  becomes  payable,  -  -         315 

32.  Order  quashing  attachment  for  rent,  -  -         315 

33.  Recognizance  for  the  payment  of  rent  at  the  time  it  will  be- 

come due,  _  -  _  -         316 

34.  Attachment  having  issued  irregularly,  order  quashing  same 

and  the  recognizance  taken  under  it,  -  -         316 

35.  Tenant  not  entering  into  recognizance  for  the  payment  of 

the  rent,  goods  attached  ordered  to  be  sold,  -         317 

36.  Right  to  sue  out  the  attachment  contested,  and  judgment 

entered  for  the  tenant,  -  -  _         317 

37.  Where  the  rent  is  reserved  in  any  other  thing  than  money, 

value  ascertained  in  money,  -  -         317 

38.  Affidavit  to  obtain  attachment  against  a  vessel,  to  meet  mas- 

ter's liability  in  a  suit  against  him  for  carrying  off  a  slave,     318 

39.  Bond  given  where  attachment  issues  against  a  vessel,  to  meet 

master's  liability  in  a  suit  against  him  for  carrying  off  a 

slave,  -  -  -  -         318 

40. '  Attachment   against  a  vessel,  to  meet  master's  liability  in  a 

suit  against  him  for  carrying  off  a  slave,  -         318 

41.  Bond  given  to  the  officer  having  possession  of  vessel  attached, 

to  get  the  same  restored  to  the  master,        -  -        319 


XXXVlll  TABLE    OF    CONTENTS. 

42.  Return  by  the  officer,  after  levying   attachment  upon  vessel,       319 

43.  Verdict  and  judgment  in  suit  instituted  for  the  recovery  of 

the  penalty  imposed  for  carrying  a  slave  out  of  the  county,     320 

44.  After  judgment  for  plaintiff  in  suit  against  the  master  of  a 

vessel,  order,  in  the  attachment  case,  to  sell  the  vessel  in 
satisfaction  of  the  judgment,  -  -         320 

CHAPTER  XXVIII. 

COMPLAINT    AGAINST    FATHER    OF    BASTARD    CHILD. 

1.  Examination  of  mother  on  oath,  -  -  321 

2.  Warrant  to  apprehend  the  father,  -  -  321 

3.  Recognizance  of  father  to  appear  at  next  court,  -  322 

4.  Warrant  for  commitment  to  jail,  in  case  no  recognizance  be 

given  to  appear  at  court,  _  _  -         322 

5.  Default  in  not  appearing  at  court  recorded,  and  scire  facias 

awarded  upon  recognizance,  -  -         324 

6.  Case  examined  into  by  the  court,  and  judgment  given  against 

the  father,  -  -  -  -         324 

7.  Recognizance  required  by  the  court  not  being  given,  order 

committing  the  father  to  jail,  -  -         326 

8.  Entry  of  the  recognizance  when  given  in  court,  -         326 

9.  Notice  of  motion  against  the  father  and  his  sureties,  for  not 

paying  the  money  charged  upon  him,  -  -         326 

CHAPTER  XXIX. 

CLAIMS  TO  ESCHEATED  LANDS  OR  THEIR  PROCEEDS. 

1.  Information  by  attorney  for  the  commonwealth  for  an  intru- 

sion upon  land  which  was  escheated,  and  of  which  the 
commonwealth  afterwards  had  possession,  -         328 

2.  After  inquisition  of  escheat,  claim  to  the  lands  by  monstrans 

de  droit  and  traverse,  .  -  -         328 

3.  Issue  made  up  on  monstrans  de  droit  and  traverse,  -         329 

4.  Verdict  for  the  claimant  of  the  escheated  lands,  and  judg- 

ment that  the  inquisition  be  quashed,  -  -         329 

5.  Issue  made  up  in  another  case ;  verdict  for  claimant^  and 

judgment  that  inquisition  be  quashed,  and  the  hands  of 

the  commonwealth  amoved,  -  -         329 

6.  Issue  made  up  in  another  case ;  verdict  for  claimant  of  a 

leasehold  interest ;  and  judgment  that  such  interest  be 
reserved  in  the  sale,  -  .  -         330 

7.  Petition  by  creditor  of  person  whose  lands  have  been  es- 

cheated, _  .  -  -         330 

8.  Judgment  on  such  petition,         .  -  .        331 


TABLE    OF    CONTENTS.  XXXIX 

CHAPTER  XXX. 

DEMANDS    AGAINST    THE    COMMONWEALTH. 

1.  Petition  by  person  having  demand  against  the  common- 

wealth, -  -  -  -        332 

2.  Answer  of  auditor  to  such  petition,  -  -         332 

3.  Judgment  on  such  petition,  _  _  _        3355 

CHAPTER  XXXI. 

CORRECTION  OF  ERRORS  IN  SAME  COURT. 

1.  Order  of  court  correcting  mistake  in  proceedings  in  the  of- 

fice during  preceding  vacation,  -  -         333 

2.  Notice  of  application  to  judge  in  vacation  to  amend  judg- 

ment, ....  333 

3.  Amendment  of  judgment  by  judge  in  vacation,  -  334 

4.  Notice  of  application  to  court  to  amend  judgment,  -  335 

5.  Judgment  amended  by  the  court,  -  -  335 

6.  Excess  in  judgment  released  by  plaintiff  at  a  subsequent 

term,  to  cure  error,  -         336 

7.  in   vacation   by   plaintiff,   by 

deed  under  hand  and  seal,        336 

8.  Petition  for  writ  of  error  coram  vobis,  -  -         337 

9.  Writ  of  error  coram  vobis  awarded,  -  -         337 

10.  Writ  of  error  coram  vobis,  .  -  -         338 

11.  Scire  facias  ad  audiendum  errores,  -  -         338 

12.  Error  in  fact  confessed ;  judgment  reversed ;  proceedings 

subsequent  to  declaration  set  aside ;  and  cause  sent  to 
rules,  -  -  -  -         339 

f3.  Writ  of  error  coram  vobis  awarded,  because  plaintiff  was 
dead  when  suit  was  brought,  and  the  fact  being  admitted, 
judgment  reversed  and  writ  quashed,  -  -         339 

CHAPTER  XXXn. 

WRIT    OF    MANDAMUS. 

1.  Rule  to  shew  cause  why  mandamus  should  not  issue,  -         341 

2.  made   absolute,  and  conditional  mandamus  awarded, 

to  do  the  specific  thing,  or  shew  cause  to  the  con- 
trary, .  .  -  _        342 

3.  Mandamus  to  a  public  officer,  to  obey  a  statute,  or  shew 

cause  to  the  contrary,  -  -         342 

4.  to  justices  of  a  county  court,  to  admit  a  deed  to 

record,  or  shew  cause  to  the  contrary,  -         342 

5.  in  New  York,  to  judges  of  court  below,  to  seal 

bill    of  exceptions,    or   shew  why   it   is   not 
done,  -  -  -        343 


Xl  TABLE    OF    CONTENTS. 

6.  Mandamus  issued  in  Virginia,  to  justices  of  county  court, 

to  affix  their  seals  to  bill  of  exceptions  alleged 

to  contain  the  truth,  si  ita  est,  -  345 

7.  Service  of  mandamus,  and  return  thereof,       -  -  345 

8.  Return  being  insufficient,  peremptory  mandamus  awarded,  346 

CHAPTER   XXXIII. 

WRIT    OF    PROHIBITION. 

1.  Notice  to  justice  of  the  peace,  of  motion  for  writ  of  pro- 

hibition, ...         347 

2.  to  opposite  party,  of  the  motion,         -  -         347 

3.  Suggestion  that  controversy  before  a  justice  involves  the  ti- 

tle of  an  assignee  to  a  freehold  estate  of 
inheritance  in  an  incorporeal  heredita- 
ment, ...         348 

4.  proceedings  before   a  justice   are  by  four 

warrants  for  sums  constituting  together 
but  one  debt,  and  that  the  debt  exceeds 
$20,  -  -  -        351 

5.'  county  court  is  illegally  exercising  jurisdic- 

tion by  prohibition,  -  -         353 

6.  Writ  of  prohibition,  -  -  -         354 

CHAPTER   XXXIV. 

WRIT    OF    HABEAS    CORPUS    AD    SUBJICIENDUM. 

1.  Petition  for  writ,      -                     -                     .                     _  356 

2.  Order  awarding  the  writ,             -                     -'                    -  357 

3.  Writ  of  habeas  corpus,                  -    .                  -                      -  357 

4.  Return  annexed  to  writ,               -                     -                     -  357 

5.  Endorsement  upon  writ,               ...  353 

6.  Return  made  to  writ,  and  case  continued  to  another  day,  358 

7.  Case  heard,  and  petitioner  discharged  from  custody,          -  358 

8.  Entry  of  return  made  to  writ ;  case  heard ;  and  prisoner  dis- 

charged, ....         358 

CHAPTER  XXXV. 

WRITS    OF    ERROR    AND    SUPERSEDEAS. 

1.  Where  party  desires  to  appeal,  order  directing  execution  to 

be  suspended,      ....         359 

2.  Bond  given  when  the  court  suspends  execution,  to  let  the 

party  apply  for  an  appeal,        ...         360 

3.  Manner  of  transcribing  the  record,  -  -         361 

4.  Transcript  of  the  record  in  a  case  wherein  final  judgment 

has  been  entered  in  the  office,  -  -        362 


TABLE    OF    CONTENTS.  xU 

5.  Transcript  in  a  case  wherein  damages  have  been  assessed 

and  judgment  rendered  upon   a  writ  of  en- 
quiry,                      -                     _                     _  363 

6.  of  an  action  on  a  bond  made  part  of  the  record 

by  oyer,                    _                       .                       _  353 

7.  of  an  action  on  a  judgment,  wherein  profert  was 

made  of  the  record  of  the  judgment,  and  no 

such  record  pleaded,                   -                     -  363 

8.  of  an  action  wherein  an  issue  of  fact  was  joined, 

opinion  at  the  trial  excepted  to,  and  judgment 

rendered  upon  a  verdict,            -                     -  364 

9.  of  an  action  of  ejectment,             -                     -  364 

10.  upon  a  writ  of  right,                       -                     -  365 

11.  upon  a  complaint  for  unlawful  detainer,             -  365 

12.  upon  a  monstrans  de  droit,             -                      -  365 

13.  of  a  judgment  on  a  forthcoming  bond,  obtained 

by  default,               -                     -                     -  370 

14.  of  a  motion  on  which  the  defendants  appeared,  370 

15.  of  a  motion  by  a  surety  against  the  principal,  370 

16.  Petition  to  circuit  court  for  a  supersedeas,      -                     -  371 

17.  Certificate  of  counsel,                  -                     -                     _  371 

18.  Order  denying  supersedeas,          -                      -                      .  371 

19.  awarding  supersedeas,        -                      .                      _  372 

20.  Record,  with  order  allowing  writ,  not  delivered  to  clerk  in  ' 

fifteen  days,  but  afterwards  received  by  the  court,          -  372 

21.  Bond  given  before  supersedeas  is  issued,         -                      -  372 

22.  Writ  of  supersedeas  to  judgment  of  county  or  corporation 

court,                   _                     .                     -                     _  373 

23.  Certiorari,                -                      .                      .                      -  373 

24.  awarded  defendant  on  suggestion  of  diminution,  373 

25.  Writ  of  certiorari  issued  after  suggestion  of  diminution,  374 

26.  Petition  for  writ  of  error,  where  petitioner  cannot  give  secu- 

rity,                    -                    -                    -                    -  374 

27.  Order  awarding  writ  of  error,  where  petitioner  cannot  give 

security,               -                     _                     _                     .  374 

28.  Bond  given  for  costs  before  writ  of  error  is  issued,             -  375 

29.  Writ  of  error,          -                     -                     -                     -  375 

30.  Order  quashing  supersedeas  which  had  been  improvidently 

allowed,                -                      -                      -                      -  375 

31.  Plaintiff  being  called,  and  not  appearing,  supersedeas  dis- 

missed,               -                    -                    -                    -  376 

32.  Supersedeas  revived  by  consent,                       -                     -  376 

33.  Scire  facias  awarded  to  revive,                        -                     -  376 

34.  Writ  of  scire  facias,                     -                      _                      _  376 

35.  Alias  scire  facias  awarded,         -                      -                      -  377 

36.  Order  of  publication,                    -                      -                      _  377 

37.  Where  one  of  two  plaintiffs  dies,  abatement  as  to  him,      -  377 

38.  Judgment  of  affirmance,               -                      _                      .  373 

39.  Affirmance  after  amending  the  transcript  of  the  record,     -  378 

vi 


Xlii  TABLE    OF    CONTENTS. 

40.  Affirmance  after  ascertaining  variance  between  judgment  and 

declaration  to  be  a  clerical  misprision,       -  _         -         379 

41.  Scire  facias  to  revive  against  plaintiff's  executor  returned 

executed,  and  judgment  affirmed,  -  -         379 

42.  Acknowledgment  of  no  error,  and  judgment  affirmed,       -         379 

43.  After  revival  in  appellate  court,  judgment  reversed,  and  ver- 

dict set  aside,  but  action  ordered  to  be  abated,  -         379 

44.  Judgment  for  defendant  reversed,  because  improperly  given 

for  him  upon  demurrers  to  replications  to  se- 
cond and  third  pleas,  and  new  judgment  enter- 
ed for  him  by  appellate  court,  upon  demurrer 
to  rejoinder  to  replication  to  first  plea,  -         380 

45.  in  original   action    being   erroneous,   subsequent 

judgment  on  forthcoming  bond,  depending  on 

it,  likewise  reversed,  -  -         381 

46.  reversed  for  error  to  the  injury  of  defendant,  and 

costs  recovered  by  him  as  the  party  prevailing,        381 

47.  reversed,  because  evidence  was  improperly  exclu- 

ded at  the  trial ;  and  cause  sent  back,  -         381 

48.  by  default,  reversed  for  defect  in  declaration ;  and 

writ  being  defective  also,  final  judgment  enter- 
ed,       -  -  -  -         382 

49.  by  default  reversed  for  defect  in  declaration ;  and 

writ  being  correct,  proceedings  subsequent  to 

writ  set  aside,  and  cause  remanded,  -         382 

50.  for  plaintiff,  where  defendant  had  demurred,  re- 

versed for  defect  in  declaration,  and  final  judg- 
ment entered,  -  .  -         382 

51.  for  defendant  on  demurrer  to  declaration  reversed  ; 

and  there  being  no  issue  in  fact,  and  the  action 
being  for  damages,  cause  remanded  to  have  the 
damages  assessed,  -  -         383 

52.  for  defendant  on  demurrer  to  one  plea  reversed, 

and  cause  remanded  for  trial  of  issue  in  fact 
joined  upon  another  plea,  -  -         383 

53.  judgment  for  plaintiff,  on  special  demurrer  to  his 

replication,  reversed ;  but  defect  being  only  in 

form,  cause  remanded,  with  leave  to  amend,  383 

54.  reversed  because  there  were  two  issues,  and  ver- 

dict responded  only  to  one ;  and  cause  reman- 
ded for  new  trial  on  both,  -  -         384 

55.  being  reversed  and  new  trial  ordered,  such  new 

trial  not  confined  to  the  issues  joined,  but  fur- 
ther matter  allowed  to  be  pleaded,  -         384 

56.  on  motion  reversed  on  the  merits,  and  final  judg- 

ment entered,  .  _  -         385 

57.  Order  overruling  motion  on  forthcoming  bond  because  of 

supposed  defect,  reversed,  and  case  remanded  to 
county  court,  -  -  -         385 

58.  overruling  motion  on  forthcoming  bond  reversed,  and 

final  judgment  entered,  -  -        385 


TABLE    OF    CONTENTS.  xllii 

59.  Affirmance  of  judgment  in  ejectment,  -  -        386 

60.  Judgment  for  plaintiff  on  complaint  for  unlawful  detainer 

reversed  by  circuit  court,  and  writ  of  restitution  awarded 

to  restore  possession,  .  _  -         386 

61.  Supersedeas  heard,  and  time  taken  to  consider,  -         387 

62.  partly  heard,  -  -  -         387 

63.  fully  heard,  and  time  taken  to  consider,  -         387 

64.  fully  considered,  and  judgment,  -         387 

65.  Fi.  fa.  on   a  judgment  of  circuit  court  affirming  a  judg- 

ment of  county  court,  -  -         387 

66.  on  a  judgment  of  circuit  court  reversing  judgment 

of  county  court,  _  -  -         389 

67.  Distringas  and  Ji.  fa.  on  a  judgment  of  circuit  court   af- 

firming a  judgment  of  county  court  in  detinue,  389 

68.  Writ  of  restitution  after  reversal  of  judgment  on  complaint 

of  unlawful  detainer,  under  which  possession  had  been 
obtained,  .  _  -  .         390 

69.  Scire  facias  where  execution  has  not  issued  within  a  year 

after  the  affirmance,  by  circuit  court,  of  judg- 
ment of  county  court,  -  -         390 

70.  against  heirs  and  terretenants,  to  have  execu- 

tion of  the  lands  upon  a  judgment  of  cir- 
cuit court  affirming  a  judgment  of  court  be- 
low, rendered  on  a  scire  facias,  -         391 

71.  Award  of  execution  thereupon,  -  -         391 

72.  Fi.  fa.  after  award  of  execution  upon  scire  facias  renewing 

judgment  of  affirmance,  -  -         392 

73.  award  of  execution  against  executor,  upon  scire 

facias  reviving  judgment  affirmed  against 
decedent,  -  _  _         392 

74.  award  of  execution  in  favour  of  executor,  upon 

scire  facias  reviving  judgment  affirmed  in 
decedent's  lifetime,  -  -         392 

75.  Transcript  of  the  record  of  a  judgment  in  circuit  court,  in 

a  suit  removed  thither  by  certiorari,  -  -         393 

76.  Transcript  of  the  record  of  a  judgment  in  circuit  court, 

given  on  a  supersedeas,  _  _  -         393 

77.  Writ  of  supersedeas  to  judgment  of  circuit  court,  -         394 

78.  Bond  given   when  supersedeas  is  obtained  to  judgment  of 

circuit  court,       -  _  .  -         394 

79.  Reversal  of  judgment  of  circuit  court,  which  reversed  judg- 

ment of  county  court  on  complaint  of  unlawful  detainer  ; 

and  writ  of  re-restitution  awarded,  -  -         395 

80.  After  circuit  court  has  reversed  two  judgments  of  county 

court,  both  judgments  of  circuit  court  reversed,  and  first 
judgment  of  county  court  affirmed,  -  -         395 

81.  Decision  of  appellate  court  received  by  clerk  of  court  be- 

low, during  the  session  of  the  court,  and  judg- 
ment entered  pursuant  thereto,  -         396 

82.  of  court  of  appeals  received  by  clerk  of  circuit  court 

in  vacation,  and  entry  thereof,       -  -        396 


Xliv  TABLE    OF    CONTENTS. 

83.  After  affirmance  of  judgment  in  detinue,  proceedings  to  as- 

certain the  value  of  the  hires  of  the  slave  recovered, 
which  have  accrued  since  the  verdict  and  judgment,       396 

84.  judgment  on  complaint  of  unlawful  entry  or  detainer 

is  reversed,  and  case  remanded,  new  jury  impan- 
nelled,         -  -  -  -        397 

85.  JFi.  fa.  after  affirmance,  by  court  of  appeals,  of  a  judgment 

of  circuit  court,  -  -  -         397 

86.  after  affirmance,  by  court  of  appeals,  of  judgment  of 

circuit  court  which  affirmed  judgment  of  county 
court,  _  .  -        398 

87.  for  costs,  after  affirmance,  by  court  of  appeals,  of 

judgment  of  circuit  court  which  reversed  order 

of  county  court,  .  -  -         398 

88.  for  costs  in  court  of  appeals,  after  reversal  by  that 

court  of  judgment  of  circuit  court,  -         399 

89.  after  judgment  of  court  of  appeals,  reversing  judg- 

ment of  circuit  court  which  reversed  judgment 
of  county  court,  and  affirming  the  judgment  of 
county  court,  -  .  -         399 

90.  Writ  of  re-restitution  after  reversal  of  judgment  of  circuit 

court,  which  reversed   judgment  of  county  court 

on  complaint  of  unlawful  detainer,  -         399 

91.  Scire  facias  upon  death  of  plaintiff  or  defendant,  to  have 

execution  for  or  against  executor  or  adminis- 
trator, upon  a  judgment  of  circuit  court 
which  has  been  affirmed  by  the  court  of  ap- 
peals, -  .  -        400 

92.  upon  death  of  plaintiff  or  defendant,  to  have 

execution  for  or  against  executor  or  adminis- 
trator after  affirmance,  by  court  of  appeals, 
of  judgment  of  circuit  court  which  affirmed 
judgment  of  county  court,  -         400 

93.  jFY.  fa.  after  award  of  execution  on  scire  facias  reviving,  in 

name  of  executor  or  administrator,  a  judgment  of  circuit 
court  which  has  been  affirmed  in  the  court  of  appeals,  401 

CHAPTER  XXXVI. 

DECLARATIONS. 
I.    IN    ACTIONS    GENERALLY. 

Names  of  parties,  -  -  -  402 

Statement  of  time,  -  _  _  402 

Where  a  corporation  sues,  what  must  be  alleged,  -  404 

What  counts  may  be  joined,        -  -  _  405 

Whai  may  be  joined  in  same  count,  -  -  406 


l-ABLE    OF    CONTENTS.  xlv 
II.    IN   DEBT. 

What  is  to  be  demanded,              _                     .                     -  406 

Debet  and  detinet,                           -                     -                      -  407 

Description  of  the  parties,           -                     .                     -  407 

of  the  note  or  obligation,              -                     -  407 

Default  of  payment,                      .                     _                     .  408 
Precedents  of  declarations  in  debt,                  -                  409  to  481 

1.  On  a  promissory  note  by  the  payee  against  the  maker,  409 

2.  two  promissory  notes,             -                     -                     -  409 

3.  a  single  bill,                             -                     -                     -  410 

4.  a  penal  bill  payable  on  demand,                 -                     -  411 

5.  two  bonds,          -                     -                     .                     -  412 

6.  Against  husband  and  wife  on  a  bond  given  by  her  before  the 

marriage,                     -                     -                     -  412 

7.  executors  on  the  bond  of  testator,                           -  413 

8.  On  a  joint  bond  against  the  surviving  obligor,                      -  413 

9.  a  joint  bond  against  the  representative  of  an  obligor  who 

was  survived  by  his  co-obligor,                -                      -  414 

10.  By  representative  of  obligee  against  obligors,                       -  415 

11.  an   administrator   de  bonis  non   with    the    will    annexed 

against  two  partners,  upon  a  penal  bill  sealed  by  one 
partner,  for  himself  and  his  co-partner,  by  the  authority 

and  in  the  presence  of  the  co-partner,                          -  415 

12.  the  administrator  of  a  surviving  partner  against  heirs  on 

a  bond  of  their  ancestor,                         -                     -  417 

13.  obligee  against  heirs  and  devisees  of  obligor  jointly,  418 

14.  an  assignee  in  his  own  name,                     -                     -  418 

15.  In  the  name  of  obligee  or  payee  for  benefit  of  assignee,  421 

16.  Of  bills  of  exchange  generally,  -  421  to  438 
How  drawn,  accepted  or  endorsed,  -  -  421 
Of  the  endorsement,  whether  general  or  special,  -  422 
Want  of  consideration,  _  _  -  423 
Consideration  which  makes  the  paper  illegal  and  void,  425 
What  is  deemed  a  foreign  bill,  -  -  425 
Whether  presentment  for  acceptance  is  necessary,  -  426 
If  acceptance  be  refused,  notice  of  dishonour  necessary,  426 
In  case  of  foreign  bill,  protest  and  notice  both  necessary,  426 
By  whom  presentment  for  acceptance  may  be  made,  -  426 
To  whom  presentment  for  acceptance  must  be  made,  -  427 
At  what  time  protest  for  non-acceptance  must  be  made,  -  427 
Upon  refusal  to  accept,  right  to  sue  draw'er  or  endorser,  -  427 
Drawee  liable  also,  if  he  had  promised  to  accept,  -  427 
Demand  at  place  of  payment  not  necessary  to  charge  accep- 
tor of  bill  or  maker  of  note,                        -                     -  428 

But  necessary  to  charge  endorser,                    -                     -  '  428 

When  demand  must  be  made,                            -                      -  428 

Protest  of  foreign  bill,  evidence  of  dishonour,                     -  430 
Due  notice  of  dishonour  necessary  to  charge  endorser  of 

note,  or  drawer  or  endorser  of  a  bill,         -                     -  431 


Xlvi  TABLE    OF    CONTENTS. 

How  soon  notice  is  to  be  given,  -  -        431 

In  what  terms  the  notice  is  to  be  expressed,  -         433 

Drawer  of  bill,  having  no  effects  in  drawee's  hands,  not  dis- 
charged by  failure  to  make  presentment  or  give  notice,  435 
Nor  can  objection  of  want  of  notice  be  made  by  endorser 
who  deceives  holder  by  representing  bill  will  be  accept- 
ed, when  he  knows  it  will  not,                     -                     -         435 
But  mere  knowledge  that  bill  will  not  be  paid,  does  not  dis- 
pense with  notice,                    _                     _                     _         436 
What  acknowledgment  is  sufficient  to  dispense  with  other 

proof  of  notice,  .  -  _         435 

17.  Under  the  statute  giving  debt  jointly  against  drawer  and 

endorser  of  a  foreign  bill,  protested  for  non-acceptance 

and  non-payment,  _  -  .         438 

18.  Against  drawer  and  endorser  of  a  note  upon  the  footing  of  a 

foreign  bill,  except  as  to  damages,  -         441 

19.  the  drawer  of  a  bill  of  exchange,  independently  of 

the  statute,  -  -  .         443 

20.  the  acceptor  of  a  bill  of  exchange,  -         443 

21.  By  the  payee  against  the  acceptor  of  an  order,  -         444 

22.  For  rent,  ....        445 

23.  Counts  to  admit  evidence  to  repel  defence  under  statute  of 

limitations,  ....  445 

24.  General  counts,        ....  447 

25.  On  a  judgment,       .  -  -  .  447 

26.  On  a  judgment  against  an  executor,  suggesting  a  devastavit,  4:4^1 

27.  Of  the  official  bond  of  any  executor,  administrator,  guar- 

dian, committee,  curator  or  other  officer,  -         448 

28.  On  the  bond  of  an  executor  or  administrator,  -         449 

29.  a  guardian's  bond,  ...         453 

30.  a  refunding  bond  given  by  legatees  or  distributees  to  an 

executor  or  administrator,  -  -         455 

31.  Against  an  officer  for  an  escape,  -  -         455 

32.  On  a  sheriff's  bond,  ...         455 

33.  the  bond  of  a  constable  for  breach  of  duty,  under  a  dis- 

tress for  rent,  ...        450 

34.  By  a  marshal  or  sheriff  on  the  bond  of  a  deputy,  who  is  in 

default,  ....         465 

35.  On  an  indemnifying  bond  taken  by  a  sheriff  or  constable  un- 

der the  statute,  ...        469 

36.  a  common  law  bond  of  indemnity,  -  -         471 

37.  a  bounds  bond,  ...         47I 

38.  On  a  bond  given  upon  obtaining  an  appeal  or  supersedeas,  473 

39.  an    injunction   to    a   judg- 

ment, -         473 

40.  an  injunction  to  a  sale  un- 

der execution,  -        474 

41.  an  attachment  against  the 

effects  of  an  absconding 
debtor,  -        476 


TABLE    OF    CONTENTS.  xlvii 

42.  By  an  heir  on  a  bond  to  his  ancestor  conditioned  for  the 

quiet  enjoyment  of  lands,  assigning  a  breach  since  the 
ancestor's  death,  -    "  -  -         476 

43.  On  the  bond  of  an  officer  of  a  banking  company,  or  other 

corporation,  conditioned  to  perform  the  duties  of  his 
office;  .  -  .  -        478 

44.  a  bond  to  transfer  back,  when  required,  bank  stock,  and 

pay  such  dividends  as  might  be  declared  thereon  in 

the  mean  time,  .  -  _         479 

45.  Against  an  officer  conducting  an  election,  under  the  statute 

creating  a  penalty  for  shewing  partiality,  -         481 

46.  Upon  the  statute  creating  a  penalty  for  receiving  more  than 

lawful  interest,  -  -  -        481 

II.    IN    COVENANT. 

Obligation  of  covenantor  construed  according  to  its  intent 

and  meaning,      -  -  -  -         482 

But  whatever  obligation  really  is,  must  be  performed,        -         482 
Of  obligations,  where  the  covenants  are  dependent,  -         482 

Where  on  one  side  only,  performance  depends  on  prior  per- 
formance by  other,  -  _  _         483 
Where  the  covenants  are  wholly  independent,                     -         484 
When  performance  by  plaintiff  need  not  be   averred   or 

proved,  -  -  .  _         484 

How  breach  of  covenant  is  to  be  assigned,  -         484 

By  and  against  whom  action  for  breach  of  covenant  may  be 

maintained,         -  _  _  -         486 

How  title  must  be  deduced  by  plaintiffs,  claiming  as  heirs 

or  devisees  of  covenantee,      -  _  -         487 

Precedents  of  declarations  in  covenant,  -  488  to  498 

1.  On  a  covenant  to  warrant  and  defend  the  quantity  of  land 

mentioned  in  a  deed,  -         488 

2.  and  defend  the  title  to  land  con- 

veyed, -  -         489 

3.  By  lessor  against  lessee  for  breach  of  covenant  to  pay  rent 

reserved  by  deed,  _  -  .         490 

4.  For  hire  agreed  to  be  paid  for  a  slave  and  the  value  of  clo- 

thing which  the  hirer  was  to  furnish,  -  -         492 

5.  On  a  covenant  to  pay  the  plaintiff  at  a  certain  rate  for  every 

bushel  of  wheat  which  he  should  deliver,  at  a  particu- 
lar place,  within  a  specified  time,  -  -         492 

6.  a  writing  acknowledging  the  receipt  of  certain  notes, 

and  stating  how  the  same,  when  collected,  were  to  be 
applied,  .  -  -  _         494 

7.  Against  a  devisee  on  the  specialty  of  testator,  -         496 

8.  On  an  agreement  to  refer  to  arbitration  and  abide  by  the 

award,  .  _  -  -  496 

What  must  be  comprehended  in  the  award,  -  496 

To  whom  payment  may  be  awarded,  -  -  496 

By  whom  payment  may  be  directed,  -  -  496 


Xlviii  TABLE    OF    CONTENTS. 

What  award  is  considered  mutual  and  final,  -  497 

Who  may  sue  for  breach  of  the  covenant,  -  498 

Profert  to  be  made  of  submission  and  award,  -  498 

How  much  of  award  must  be  set  forth,  -  -  498 

III.    IN    ASSUMPSIT. 

Assumpsit  not  to  be  brought  on  sealed  instrument,  -  498 

It  may  now  be  brought  against  a  corporation,  -  499 

Or  by  a  corporation,  _  .  .  499 

Time  of  the  promise  to  be  stated,  -  -  500 

Consideration  must  be  set  out  to  support  the  promise,       -  501 

Promise  must  be  stated,  -  -  ^         -  502 

Breach  of  the  promise  must  be  alleged,         -  -  502 

Unnecessary  length,  in  declarations,  now  discountenanced 

in  England,        -  .  _  -  502 

Precedents  of  declarations  in  assumpsit,         -  503  to  554 

1.  On  an  inland  bill  of  exchange  against  the  acceptor  by  the 

drawer,  being  also  payee,  -  -  503 

2.  Against  the  acceptor  by  the  drawer,  not  being  the  payee,  503 

3.  the  payee,  not  being  the  drawer,  503 

4.  the  endorsee,  -  -  503 

5.  drawer  by  payeee  on  non-acceptance,  -  504 

6.  endorsee  on  non-acceptance,  -  504 

7.  Against  first  endorser  by  an  endorsee  on  non-acceptance,  505 

8.  second  or  third  endorser  by  his  endorsee  on  non-ac- 

ceptance, .  -  _  505 

9.  drawer  or  endorser,  where  action  is  brought  after 

expiration  of  time  for  payment,       -  -  505 

10,  drawer  or  endorser  of  bill  protested  for  non-accep- 

tance or  non-payment,  where  damages  are  claimed 

under  the  Virginia  statute,  -  -  507 

11.  drawer  by  an  acceptor  who  accepted  for  accommo- 

dation of  drawer,         -  -  -  508 

11.  the  acceptor  of  a  foreign  bill,  -  -  509 

12.  On  a  promissory  note,  payable  in  bank  notes  or  other  arti- 

cles of  fluctuating  value,         -  -  -  509 

13.  Upon  the  promise  of  a  person  appearing  as  obligor   in  a 

bond,  to  pay  the  same  to  one  taking  a  transfer  thereof  from 

the  obligee,  -  -  -  511 

14.  Of  the  right  and  remedy  of  assignee  against  assignor,       -  515 

How  far  assignor  is  responsible,  -  -  515 

Assumpsit  is  the  proper  remedy,  -  -  515 

Due  diligence  must  appear,  and  generally  there  should  be  a 

suit  against  obligor,  _  _  _  515 

Where  failure  to  sue  does  no  injury  to  assignor,  suit  may  be 

dispensed  with,  as  where  maker  is  not  liable,  -  515 

Or  where  the  maker  is  insolvent,  -  -  516 

Whether  non-residence  of  obligor  is  a  sufficient  excuse  for 

not  suing  him,     -  -  -  -  516 


TABLE    OF    CONTENTS.  xHx 

Where  no  excuse  for  not  suing,  suit  must  be  diligently  pro- 
secuted, .  .  .  _        5X6 

The  result  of  the  suit  must  be  shewn,  -  -         516 

If  judgment  against  maker  be  injoined,  assignor  must  not 

be  sued  while  injunction  is  pending,  -  -         516 

If  maker  be  taken  under  a  ca.  sa.  assignor  must  not  be  sued 

while  he  continues  charged  in  execution,  -         517 

But  without  issuing  ca.  sa.  suit  may  be  brought  upon  return 

of  nulla  bona,     -  -  -  -         517 

Sheriff's  return  cannot  be  controverted,         -  -         517 

15.  Count  against  assignor  setting  forth  return  of  nulla  bona,  517 

16.  alleging  notorious  insolvency,         -         519 

17.  After  judgment  by  second  assignee  against  obligor,  and  re- 

turn of  nulla  bona,  count  by  first  assignee  against  his  as- 
signor, _  _  _  .  520 

18.  For  breach  of  a  promise  to  marry,  -  -  520 

19.  Of  bailment,  ...  -  521 

20.  Against  a  common  carrier,  -  -  -  522 

21.  a  vendee  for  the  price  of  goods  sold  and  virtually 

delivered,  -  _  _         523 

23.  a  purchaser  at  auction,  failing  to  comply  with  the 

terms,  for  the  loss  upon  a  resale,  -         524 

23.  By  the  purchaser  of  a  slave  or  other  chattel  upon  the  war- 

ranty of  title,  -  -        527 

24.  a  slave  warranted  sound,  who  was  dis- 

eased at  the  time,  and  remained  so 

until  her  death,  -  -         527 

25.  a  horse  warranted  sound,  (and  offered 

to  be  returned  upon  being  discover- 
ed to  be  unsound,)  for  the  expense 
of  keeping,  and  the  loss  upon  a  re- 
sale,        -  -  -        528 

26.  a  horse  warranted  sound,  who  proved  to 

be  unsound,  but  was  not  returned  or 
tendered,  -  -         529 

27.  seed  warranted  good,  which  were  used 

and  proved  not  to  be  good,  -         529 

28.  an  article  sold  for  a  particular  purpose, 

upon  the  implied  warranty  that  it  is 

fit  for  that  purpose,  -        530 

29.  For  the  use  and  occupation  of  a  house,  -  -         530 

30.  On  a  promise  to  pay  the  year's  hire  of  a  slave  and  furnish 

him  with  clothing,      -  -        531 

31.  monthly  hire  for  a  slave,  -         533 

32.  On  a  writing  promising  to  furnish  the  bond  of  another  per- 

son for  the  hire  of  a  slave,      -  -  -         533 

33.  For  services  rendered  as  a  physician,  -  -         533 

34.  By  a  high  sheriff  against  the  administrators  of  his  deputy, 

for  money  received  by  the  deputy,  virtute  officii,  -        534 

vii 


1  TABLE    OF    CONTENTS. 

35.  By  an  officer  who  took  property  under  execution  and  sold 

the  same  upon  an  agreement  that  he  should  be  indem- 
nified, .       -  -  -  -        536 

36.  By  a  legatee  upon  a  promise  of  the  executor  to  pay  his  le- 

gacy, _  .  -  -        541 

37.  Of  cases  in  which  the  statute  of  frauds  requires  a  writing,         542 

38.  Against  an  executor  or  administrator  upon  a  promise  to  pay 

a  debt  of  the  decedent,  .  -  -        543 

39.  Upon  a  promise  to  answer  for  the  debt,  default  or  miscar- 

riage of  another  person,  -  -  -         543 

Statute  applies  where  creditor  has  a  double  remedy,  -         543 

Whether  merchant's  books  are  evidence  that  he  had  not  a 

double  remedy,  .  _  _         544 

Consideration  need  not  be  expressed  in  the  writing,  but  may 

be  proved  dehors,  _  -  -         544 

What  is  a  promise  to  pay,  and  what  a  sufficient  considera- 
tion for  it,  -  -  -  -  544 
Declaration  need  not  set  out  the  writing,  but  must  describe 

the  promise  correctly,  ...         545 

If  promise  was  conditional,  condition  must  appear  to  have 

been  complied  with,  _  _  -        545 

Necessary  sometimes  to  aver  notice  to  defendant,  -        545 

But  not  necessary  to  aver  demand  upon  third  person  and  his 

refusal,  -  .  .  .         545 

40.  For  money  agreed  to  be  paid  in  consideration  of  marriage,        549 

41.  Upon  a  contract  for  the  sale  of  lands,  -  -         549 

42.  an  agreement  which  is  not  to  be  performed  within  one 

year,  _  .  -  -         550 

43.  What  may  be  recovered  under  the  common  counts,  and 

forms  of  such  counts,  to  wit:  I.  for  goods j  2.  for  work 
and  materials ;  3.  for  money  lent ;  4.  for  money  paid ;  5. 
for  money  received ;  and  6.  for  money  found  due  on  ac- 
count stated,       -  -  .  550  to  554 

44.  General  conclusion,  -  -  -        554 

IV.    IN    TRESPASS. 

Distinction  between  trespass  and  case,  -  -        554 

Of  the  different  kinds  of  trespass,  -  555  to  560 

1.  For  a  trespass  to  or  upon  the  person,  -  -        555 

2.  upon  real  property,  -  -  555 
By  whom  the  action  can  and  cannot  be  maintained,  -  555 
Against  whom  the  action  can  and  cannot  be  maintained,  555 
To  what  extent  plaintiff  may  claim  redress,  -  555 
How  the  count  must  be  framed,  -  -  556 
Advisable  that  the  place  be  mentioned,-  -  -  556 
Use  of  clause  of  alia  enormia,  -  -  557 
Forms  of  declarations,                  ...  557 

3.  For  a  trespass  upon  personal  property,  -  -  558 
It  lies  for  destroying  or  injuring  slaves,  -  -  558 
It  lies  against  an  officer  for  his  tortious  act,  -        558 


TABLE    OP    CONTENTS.  U 

Or  for  the  tortious  act  of  his  deputy,               -                     -  558 

When  it  lies  for  or  against  a  personal  representative,          -  559 

What  amounts  to  a  waiver  of  the  trespass,                            -  559 

Whether  the  declaration  must  specify  the  property,             -  559 

Whether  declaration  must  state  possession  of  plaintiff,        -  559 

Averment  of  property  indispensable,                -                     -  559 

Forms  of  declarations,                 ...  560 

V.    IN    DETINUE. 

Object  of  the  action,                    ...  560 

For  what  it  may  be  maintained,                        -                     -  560 

Plaintiflf  must  have  title  and  defendant  possession,              -  560 

What  title  is  sufficient,                 .                     -                     _  560 
What  possession  in  defendant  will  support  the  action  against 

hira,                      .                     _                     _                     .  562 
Defendant's  possession  charges  him  in  his  individual  charac- 
ter,                      -                    -                    -                    -  562 
How  the  declaration  may  describe  the  slave  or  other  thing 

sued  for,               .                     -                     _                     .  562 

Averment  of  property  necessary,                      -                     .  562 

Value  must  be  laid  separately  for  each  slave,                       -  562 

Not  necessary  to  allege  a  special  demand,       -                     -  562 

Forms  of  the  counts,                    -       ,.            -                    -  563 

VI.    IN    CASE, 

1.  For  a  slave  or  other  chattel  converted  by  defendant  to  his  use,  564 
Action  may  be  maintained  by  a  trustee,  -  -  564 
It  will  not  lie  against  an  agent  who  has  made  payment  to  his 

principal  without  notice,  .  -  _  564 
But  a  payment  over  by  an  executor  or  administrator  will  not 

exonerate  him,                          -                     -                     _  564 

When  demand  and  refusal  are  not  necessary  to  be  shewn,  564 

Form  of  declaration,                     ...  564 

2.  For  bank  notes  or  bills  of  exchange  lost  by  or  stolen  from 

plaintiff,  and  converted  by  defendant  to  his  use,             -  565 

Decisions  upon  this  subject,         ...  565 

3.  For  loss  of,  or  injury  to,  a  slave,  occasioned  by  defendant's 

neglect,                _                     .                     .                     _  566 

Decisions  upon  the  subject,         -                    -         ,          _  566 

Form  of  declaration,                     ...  568 

4.  By  the  owner  of  a  runaway  slave  against  a  sheriff  for  not  fur- 

nishing the  slave,  while  in  jail,  with  bed-covering  and  fuel,  569 

5.  By  the  owner  of  a  slave  received  in  jail,  against  the  sheriff 

for  his  negligence  in  suffering  the  slave  to  escape,          -  571 

6.  Against  a  sheriff  for  an  escape,                         -                     -  572 
Where  sheriff  making  arrest  turns  prisoner  over  to  his  suc- 
cessor,                 -                     -                     _                     _  572 

7.  For  unlawful  distress,  ...  573 
Where  the  trespass  is  waived,                          -                    -  573 


Hi  TABLE    OF   CONTENTS. 

8.  Against  the  clerk  of  a  court  fo^-  improperly  endorsing  credits 

on  an  execution,         .  -  -        575 

9.  a  deputy  sheriff  for  an  illegal  sale  under  an  execution,     575 

10.  By  a  sheriff  who  levied  upon  goods  at  the  instance  of  an  ex- 

ecution creditor,  and  was  compelled  to  pay  damages  to  a 
claimant  of  the  goods,  to  recover  the  amount  of  those 
damages  from  the  execution  creditor,  -  -         575 

11.  By  a  deputy  sheriff  against  his  principal  for  turning  him  out 

of  office  without  cause,  -  -  -        577 

12.  For  raising  a  mill  without  authority,  whereby  a  mill  of  the 

plaintiff  was  rendered  useless  and  the  health  of  his  family 
injured,  _  -  _  _         577 

13.  Against  a  surveyor  for  fraudulently  refusing  to  furnish  copies 

of  surveys,  '  _  -  .  578 

13.  Against  a  vendor  for  fraud,  -  .  _  578 
Action  lies  for  false  representation  or  suppression  of  truth,  578 
Case  of  a  false  representation,                          -                    -  578 

of  suppression  of  the  truth,  -  -         579 

Declaration  must  always  allege  fraud,  -  -        579 

14.  For  a  fraudulent  representation   in   any  other   transaction 

than  a  sale,  -  _  _  .         583 

Case  of  a  partial  representation,  -  -         583 

Whether  the  motive  is  material,  -  -         583 

Enough  that  defendant  knew  he  was  making  a  false  repre- 
sentation, _  _  _  .        584 
What  representation  will  be  considered  as  made  to  the  plain- 
tiff,                      -                    -                    -  -        584 
Class  of  cases  in  which  the  representation  must  now  be  in 

writing,  ....        585 

15.  For  slander,  -  .  .  .        590 

16.  For  proceeding  under  process  of  law,  maliciously  and  with- 

out probable  cause,  -  -  _  590 

obtaining  an  attachment  against  property,  -  590 

a  prosecution  or  for  conspiring  or  advising  a  prosecution,  590 

Both  malice  and  want  of  probable  cause  must  be  averred,  591 

Whether  it  must  be  alleged  that  the  proceeding  complained 

of  is  determined,  _  _  -  592 

Form  of  declaration  for  advising  and  inducing  a  malicious 

prosecution,         .  -  -  -  592 

17.  For  criminal  conversation  with  plaintiff's  wife,  -  592 
Whether  action  lies  for  act  done  after  agreement  by  husband 

and  wife  to  live  separately,  -  -  592 

18.  For  debauching  plaintiff's  daughter,  -  -  594 
No  criminal  prosecution  lies,  -  -  594 
Remedy  by  action,  -  -  -  594 
Form  of  declaration,                    _  -  -  594 


TABLE  OF  CASES  CITED 


Albany  Dutch  church  v.  Vedder 

and  others,  14  Wend.  165,  478 

Allen  &c.  V.  Cunningham  «fcc. 

3  Leigh  395,  449 

Allen's  ex'or  v.  Harlan's  adm'r, 

6  Leigh  42,  35. 145.  238.  247 

Allison  V.  The  Bank,  6  Rand. 

204,  478 

Ambler  and  wife  v.  Norton,  4  Hen. 

S^  Munf.  23,  192 

Amies  v.  Stevens,  1  Str.  128,  73 

Amis  V.  Koger,  7  Leigh  221,        276.  374 
Ammiden  v.  Smith  «&;c.  1  Wheat. 

447,  471 

Ammonett  v.  Harris  &c.  1  Hen.  ^ 

Munf.  488,  78 

Anderson  v.  Bullock  &a.  4  Munf. 

442,  408 

Anderson's  case,  5  Rand.  627,  594 

Argenbright  v.  Campbell  and  wife, 

3  Hen.  S^  Munf.  174,  408 

Armistead  v.  Armistead,  decided  in 

ct.  of  appeals  of  Va.  Nov.  1839,      428 
Armstrong  v.  Armstrongs,  1  Leigh 

491,  497 

Arnold  v.  Arnold,  3  Bingh.  JV.  C. 

81,  500 

Arnold  v.  Crane,  8  Johns,  30,  552 

Arnold  v.  Hickman,  6  Munf.  15,         515 
Ashby  V.  Kiger,  3  Rand.  50,  4 

Aslin  &c.  V.  Summersett,  1  Barn. 

4.  Md.  135,  171 

Atkinson  v.  M.  A.  Society, 

6  Cranch  202,  283 

Austin's  adm'x  v.  Whitlock's 

ex'ors,  1  Munf.  487,  407. 492 

Austin's  ex'or  v.  Jones,  Gilm. 

350,  560 

Austin  V.  Morse,  8  Wend.  476,  556 

Avery  v.  Inhabitants  of  Tyringham, 

3  Mass.  rep.  160,  502 

Aylett's  ex'or  v.  Robinson,  9  Leigh 

45,  79 

Ayres  v.  Lewellen,  3  Leigh  609,  370.  375 

B 
Bagwell  V.  Babe,  1  Rand.  272,  16 

Bailey  &c.  v.  Beckwith,  7  Leigh 

604,  407 

Baird  v.  Blagrove,  1  Wash.  170,  407 

Ball  V.  Dunsterville  &c.  4  T.  R. 

313,  415 


Bank  of  Columbia  v.  Hagner, 

1  Peters  455,  482 
Bank  of  Columbia  v.  Patterson's 

adm'r,  7  Cranch  306,  499 

Bank,  Farmers  v.  Clarke,  4  Leigh 

609,  10,  446 

Bank,  Farmers  v.  Vanmeter,  4  Rand. 

553,  435 

Bank  of  Marietta  v.  Pindall,  2  Rand. 

477,  418 

Bank,  State  v.  Hurd,  12  Mass.  R. 

172,  552 

Bank  of  United  States  v.  Cameal, 

2  Peters  542.  553,  428. 435 
Bank  of  United  States  v.  Daniel 

&c.  12  Peters  32,  425 

Bank  of  Washington  tj.  Triplett  & 

Neale,  1  Peters  25.  35,  426,  9 

Banks  v.  Angell  &c.  7  M.  ^  El. 

843,  157 

Bargamin  v.  Wercq's  ex'or,  4  Leigh 

412,  161 

Barksdale  v.  Fenwick,  4  Call  492,      516 
Barksdale  v.  Fenwick,  2  Hen.  fy 
i  Munf.  114,  note,  516 

Barnett's  ex'or  v.  Giles,  governor, 

6  Leigh  316,  24. 449 

Barnett  «fcc-  v.  Watson  &c.  1  Wash. 

372,  131 

Barton  v.  Petit  «&c.  7  Cranch  288,  381 
Bass  V.  Bass,  4  Hen.  8^  Munf.  478,  562 
Beckwith  v.  Conal  &c.  3  Bingh. 

444,  565 

Beecker  v.  Beecker,  7  Johns.  99,  542 
Beirne  &c.  v.  Dunlap,  8  Leigh  514,  509 
Bell  V.  Allen's  adm'r,  3  Munf.  118,  407 
Bell  V.  Bugg,  4  Munf.  260,  590 

Bell  V.  Reed,  4  Binn.  127,  73 

Bennett  v.  Maule's  adm'x,  Gilm. 

313,  421 

Bennett's  ex'or  v.  Loyd,  6  Leigh 

316,  24.449 

Benson  v.  White,  4  Dow.  334,  428 

Bentley  &c.  v.  Northhouse,  1  Mood. 

4^  Malk.  66,  553 

Betts  V.  Kimpton,  2  Barn.  ^  Ad. 

273,  250 

Beverley  v.  Brooke,  2  JVlieat.  100,  567 
Beverleys  v.  Holmes,  4  Munf.  95,  501 
Beverley  v.  The  Lincoln  gas  light 

and  coke  company,  6  M.  8^  E. 

829,  499 


liv 


CASES   CITED. 


Bingley  v.  Durham,  8  M.  ^  E.  775,  500 
Blackhouse  v.  Harrison,  5  Barn.  ^ 

M.  1098,  566 

Blackwell  v.  Patton  «fcc.  7  Crunch 

477,  176 

Blakey  v.  Ne why's  adm'r,  6  Munf. 

64,  562 

Boiling  V.  Mayor  &c.  of  Petersburg, 

3  Rand.  578,  59 

Borrodaile  v.  Lowe,  4  Taunt.  97,  437 
Boswell  V.  Flockheart,  8  Leigh  364,  43 
Boulton  V.  Welsh,  3  Bingh.  JV.  C. 

688,  118.435 

Bowden,  ex'or  of  Moore  v.  Taggart, 

3  Munf.  513,  414 
Bowyer  v.  Chesnut,  4  Leigh  4,  361 
Boyce  «&c.  v.  Edwards,  4  Peters 

111,  427 

Boydell  &c.  v.  Drummond,  11  East 

142,  550 

Boyle  V.  Townes,  9  Leigh  158,  405 

Bracegirdle  v.  Heald,  1  Barn.  4'  -^Id. 

722,  550 

Bramah  v.  Roberts  &c.  1  Bingh.  JV. 

C.  469,  424 

Branch  v.  Bowman,  2  Leigh  170,  85 

Branch  &c.  v.  Randolph,  5  Call  546,  455 
Branscomb  v.  Bridges  &c.  1  Barn. 

4/.  Cress.  145,  573 

Bray  &c.  v.  Hadwen,  5  M.  ^  S.  68,  432 
Bream  v.  Marsh,  4  Leigh  24,  484 

Broad  v.  Ham,  5  Bingh.  JV.  C.  722,  591 
Brockenbrough  v.  Ward's  adm'r, 

4  Rand.  354,  482.  552 
Bronaugh  &  Co.  v.  Scott,  5  Call  78,  516 
Brooks  V.  Scott's  ex'or,  2  Munf. 

345,  551 

Brown  v.  Barry,  3  Ball.  365,       426. 441 
Brown  &  Rives  v.  Ralston  &  Plea- 
sants, 9  Leigh  532,  551 
Brown  &,  Sons  v.  Ferguson,  4  Leigh 

37.  50,  426. 431, 2, 6 

Brown  v.  Shields,  6  Leigh  440, 5, 

527.  579 
Buck  V.  Fouchee  and  wife,  1  Leigh 

64,  17. 65 

Buckner  v.  Finley  &c.  2  Peters  586,  425 
Buckner  &c.  v.  Mitchell's  ex'or, 

2  Munf.  336,  415 

Bull  V.  Neale,  3  Barn.  S/-  Md.  208,  405 
Bullitt's  ex'or  v.  Winstons,  1  Munf. 

269,  242 

Burley  v.  Griffith,  8  Leigh  442,  571 

Burnett  &c.  v.  Harwell  «&c.  3  Leigh 

94,  449 

Burnley  v.  Lambert,  1  Wash.  308,  562 
Bush  V.  Earl  of  Liverpool,  9  Barn,  i^ 

Cress.  392,  550 

Bussard  v.  Livering,  6  Wheat.  102,  431 
Buster's  ex'or  v.  Wallace,  4  Hen.  ^ 

Munf.  82,  445 

Butcher  v.  Hixton,  4  Leigh  519,  446 
Bynner  v.  Russell,  1  Bijigh.  23,  402 


Cabell  &c.  v.  Hardwick,  1  Call  345,  452 
Call  V.  Ruffin,  1  Call  333,  452 

Calt  &c.  V.  M'Mechen,  6  Johns. 

rep.  160,  73 

Cameron  v.  Lightfoot,  2.  W.  Bl. 

1190,  554 

Candler  «fec.  v.  Rossiter,  10  Wend. 

487,  502 

Carter  v.  Ring,  3  Camp.  459,  411 

Carthrae  v.  Brown,  3  Leigh  98,  486 

Carthrae  v.  Clarke,  5  Leigh  268,  65.  84 
Carrington  v.  Anderson,  5  Munf.  32,  469 
Carr's  ex'or  v.  Anderson,  2  Hen.  ^ 

Munf.  365,  361 

Catlett's  ex'or  v.  Russell,  6  Leigh 

344,  35.  145.  238.  247 

Caton  &  Veale  v.  Lenox  «&c. 

5  Rand.  331,  515,  17 

Cave  V.  Shelor  and  wife,  2  Munf. 

193,  590 

Chambers  v.  Caulfield,  6  East  244,  593 
Chapline  v.  Overseers  of  poor, 

7  Leigh  231,  286 

Chapman  v.  Chevis,  9  Leigh  297,  292 
Chesterman  v.  Lamb,  2  .3d.  ^  E. 

129,  528 

Chichester  v.  Vass,  1  Call  83,  549 

Childers  v.  Bulnois,  1  Dow.  S^  Ry. 

JV.  P.  cas.  8,  551 

Christopher  v.  Stockholm,  5  Wend. 

36,  406 

Church  V.  The  Imperial  gas  light 

and  coke  company,  6  ^d.  ^  E. 

846,  500 

Clare  v.  Maynard,  7  Car.  S^  Payne 

741,  529 

Clark  V.  Franklin,  7  Leigh  7,  482,  4 

Clarke  v.  Morey,  10  Johns.  69,  16 

Clarke  v.  Russell,  3  Doll.  415,  426 

Clarke  v.  Young  &  Co.  1  Crunch 

180,  516 

Cleaton  v.  Chambliss,  6  Rand. 

91,  59.  62.  65 

Cloud  V.  Catlett's  ex'or,  4  Leigh 

462,  257.  264.  273 

Cloves  T.  Williams,  3  Bingh. 

N.  C.  32,  444 

Cobbs  V.  Fountaine,  3  Rand.  484,  408 
Cocker  v.  Crompton  &c.  1  Barn, 

4-  Cress.  489,  556 

Cody's  adm'r  v.  Price,  4  Munf.  307,  447 
Coiner  v.  Hansberger,  4  Leigh  452,  516 
Colgin  V.  Henley,  6  Leigh  85,  544,  5 
Collins  v.  Lord  Matthew,  5  East  273,  64 
Collins  X.  Martin,  I  B.  S^  P.  648,  424 
Columbia  bank  v.  Hagner, 

1  Peters  455,  482 

Columbia  bank  v.  Patterson's 

adm'r,  7  Crunch  306,  499 

Commonwealth  v.  Haines,  2  Va. 

Cas.  134,  265 

Commonwealth  v.  Kite,  6  Leigh  588,  328 


CASES   CITED. 


Iv 


Commonwealth  v.  Winstons, 

5  Rand.  546,  335 
Cooke  V.  Beale's  ex'or,  1  Waah.  313,  66 
Cooke  V.  Graham's  adm'r,  5  Munf. 

172,  75 

Cooke  V.  Sims,  2  Call  39,  502 

Cooke  v.  Thornton,  6  Rand.  8,  555,  6 
Coolidge  and  others  v.  Payson 

and  others,  2  Wheat.  66,  427 

Cooper  V.  Bissell,  16  Johns.  146,  405 
Cooper  r.  Blandy  &c.  1  Bingh. 

JV.  C.  45,  158 

Corbett  &c.  v.  Brown,  8  Bingh.  33,  584 
Corbett  v.  Packington,  6  Barn.  ^ 

Cress.  268,  405 

Corbin's  adm'r  z.  Southgate,  3  Hen. 

«^  Munf.  319,  _  444 

Couch  V.  Hooper,  2  Leigh  557,  545 

Couch  V.  Miller,  2  Leigh  545,  275 

Cowling  V.  Nansemond  justices, 

6  Rand.  252,  452 
Crawford  &c.  v.  Jarrett's  adm'r, 

2  Leigh  633,  9,  41.  78.  536 

Crow  T.  Rogers,  1  Str.  592,  501 

Cruger  v.  Armstrong  ifec.  3  Johns. 

cas.  5,  553 

Culpeper  agricultural  and  manu- 
facturing society  v.  Diggs  «&c. 
6  Rand.  165,  404 

Cunliffe  Sec.  v.  Whitehead,  3  Bingh. 

JV.  C.  828,  504 

Cunningham  v.  Mitchell,  4  Rand. 

189,  371 

Currie's  adm'rs  r.  M.  A.  Society, 

4  Hen.  i^  -^unf.  315,  283 
Cutler  V.  Hinton,  6  Rand.  509, 

518,  543, 4 

Cuyler  v.  Stevens,  4  Wend.  556,         432 

D 
Dabney  v.  Taliaferro,  4  Rand.  256,     569 
Dakin  v.  Williams  &c.  11  Wend. 

67,  484 

Dalton  V.  Smith,  2  Smith's  rep.  618,  405 
Daniel  v.  Morton,  4  Munf.  120,  543 

Daniel's  ei'or  v.  Cook,  1  Wash. 

306,  486, 7 

Darbeshire  &c.  v.  Parker,  6  East  3,  432 
Davis  V.  Gyde,  2  ^d.  if  El.  623,  158 

Davis's  adm'r  v.  Thomas  &c. 

5  Leigh  4,  421 
Davison  &c.  v.  Savage,  6  Taunt. 

121,  402 

Dawson  v.  Thruston  and  others, 

justices  of  Frederick,  2  Hen.  ^ 

Munf.  132,  342,  6 

Day  «&c.  V.  Chism,  10  JVheatUd,  485,  6 
De  La  Chaumette  v.  The  bank  of 

England,  2  Bam.  S,-  Ad.  385,  566 

De  Lacy  v.  Antoine  &c.  7  Leigh 

438,  356 

Demott  r.  Field,  7  Cow.  58,  406 

Deneale  r.  Stumps's  ex'ors, 

8  Peters  528,  266 


Denham  v.  Stephenson,  1  Salk. 

355,  417.  476.  487 

Dey  &  Dox  V.  Mercer,  9  Wend.  129,  484 
Dickens  v.  Beale,  10  Peters  572,  431,  5 
Dickinson's  adm'r  &c.  v.  M'Craw, 

4  Rand.  158,  476 

Digges's  ex'or  v.  Dunn's  ex'or, 

1  Munf.  56,  363 

Dinwiddie  justices  v.  Chesterfield 

justices,  5  Call  556,  341 

Dob  V.  Halsey,  16  Johns.  34,  60 

Doe  V.  Penfield,  19  Johns.  308,  17 

Donaghe  v.  Rankin,  4  Munf.  261,  590 
Donaghe  v.  Roudeboush,  4  Munf. 

251,  559 

Doolittle  V.  Malcolm,  8  Leigh  608,  497,  8 
Downes  &c.  v.  Church,  13  Peters 

205,  441 

Downman  v.  Downman's  ex'or, 

1  Wash.  28,  ,       83 

Dox  &  Mercer  v.  Dey,  3  Wend.  356,  484 
Drane  v.  Scholfield,  6  Leigh 

386.  397,  516.  552 

Drummond  v.  Crutcher,  2  Wash. 

218,  419 

Dugan  V.  The  United  States, 

3  Wheat.  182,  423 

Dulany  v.  Hodgkin,  5  Cranch  333,  516 
Dumsday  v.  Hughes,  2  Scott  377,  187 
Duvall  V.  Craig,  2  Wheat.  58,  484,  5,  7 
Dykes  &  Co.  v.  Woodhouse's  adm'r, 

3  Rand.  287,  447 

E 
Eales  V.  Dicker,  1  Mood.  8^  Malk. 

324,  553, 4 

Easley  v.  Craddock  &c.  4  Rand. 

423,  533 

Easley  v.  Crockford,  10  Bingh.  243,  556 
Eib  V.  Pindall's  ex'x,  5  Leigh  109, 

24.405 
Ellis  V.  Chinnock,  7  Car.  fy  Payne 

169,  529 

Ellis  v.  Tbilman,  3  Call  3,  591 

Ellis  V.  Turner's  adm'r,  5  Munf.  196,  502 
Ely  &c.  V.  Ballantine,  7  Wend.  470,  18 
Eppes's  adm'rs  v.  Bagley's  adm'r, 

4  Munf.  466,  81 
Eppes's  ex'or  v.  Cole  and  wife,  4  Hen. 

^  .Vmw/.  161,  530 

Eppes's  heir  v.  Eppes's  adm'r,  2  Call 

22,  476 

Eubank  and  others  r.  Rail's  ex'or, 

4  Lei^A  308,  335 

Evans  v.  Gee,  11  Pefer^  80,  423,  7 

Evans  ».  Smith,  1  Wash.  72,  407 

Exon  T.  Russell,  A  M.  S^  S.  503,  553 

F 

Fairfax  v.  Lewis,  2  Rand.  35,  482, 4 

Farleigh  &c.  v.  Briant  &c.  3  Ad.  ^ 

E.  839,  418 

Farmers  bank  v.  Clarke,  4  Leigh 

609, 10,  446 


Ivi 


CASES    CITED. 


Farmers  bank  v.  M.  A.  Society  &c. 

4  Leigh  69,  283 

Farmers  bank  v.  Vanmeter,  4  Rand. 

553,  435  \ 

Faulkner  v.  Anderson,  Gilm.  221, 

5S5.  557.  590 
Faulkner's  adm'x  v.   Harwood, 

4  Rand.  245,  560 

Fenton  v.  Emblers,  1  W.  Bl.  353. 

3  Burr.  1278,  550 
Ferguson  v.  Highley,  2  Va.  Cas.  255,  146 
Ferguson  v.  Mitchell,  2  Cro.  4/-  M. 

687.    Tyrwh.  fy  Gr.  179,  500 

Field  V.  Cocke,  Barradall's  MS.  rep. 

173  572 

Fielde'r  v.  Starkin,  1  H.  Bl.  17,  529 

Fleming's  ex'or  v.  Dunlop  «fec. 

4  Leigh  338,  266 
Foster  &c.  v.  Charles,  6  Bingh.  396,  583 
Fowler  v.  Sharp  &c.  15  Johns.  323,  81 
Fox  V.  Keeling,  2  M.  <^  Ellis  670,  481 
Fox  and  Vowles  v.  Mountjoy  ex'or 

of  Edwards,  6  Munf.  36,  473 

Free  v.  Burgoyne^  2  Bligh.  JV.  S.  65,  347 
French  and  Brown  v.  The  Common- 
wealth, 5  Leigh  512,  328,  9.  365 
Fry.  D.  Evans,  8  Wend.  530,  406 

G 
Gardner's  adm'r  v.  Vidal,  6  Rand. 

107,  80 

Garland  v.  Bugg,  5  Munf.  166,  240 

Garland  v.  Davidson,  3  Munf.  189,  415 
Garland  v.  Richeson,  4  Rand.  266,  421 
Geill  V.  Jeremy  &c.  1  Mood.  8^  Malk. 

61,  432 

Gibb  V.  Mather  &c.  21  Eng.  com. 

law  rep.  277,  432 

Gibbs  &c.  ex'ors  of  Edwards  v. 

Southam,  5  Barn.  4/-  Ores.  911,  408 
Gill  V.  Corbett  «&c.  3  Barn.  ^  Cress. 

466,  566 

Gilliat  V.  Lynch,  2  Leigh  503,  423 

Goodall  V.  Stuart,  2  Hen.  ^  Munf. 

105,  517, 19 

Gordon  v.  Frazier  &c.  2  JFasA.  134,  378 
Gordon  &c.  v.  Brown's  ex'or,  3  Hen. 

^  Munf.  219,  410,  18 

Gordon  «fec.  v.  Little,  8  Serg.  S/- 

Rawle  536,  7,  73 

Graham  and  Scott  v.  Graham  and 

Lane,  4  Munf.  205,  84 

Grainger  v.  Hill  «&c.  4  jBin^A.  JV.  C. 

212,  592 

Gray  and  Scott  v.  Campbell,  3  Munf. 

251,  473 

Gray  &c.  v.  Scott  «&c.  4  Barn,  fy 

Cress.  103,  530 

Grays  v.  Turnpike  company,  4  Rand. 

579,  404 

Green  v.  Reynolds,  2  JoAns.  207,  482 
Green  v.  Watkins,  6  Wheat.  260,  376 
Greenhow  v.  Barton,  1  Munf.  590,  283 
Greenhow  v.  Buck,  5  JWmji/.  263,        283 


Greenlee's  adm'r  v.  Bailey,  9  Leigh 

256,  38. 145.  238.  247 

Grimes  v.  Pendleton,  4  Call  130,  413 
Guerrant  v.  Bagby,  6  Munf.  160,        169 

H 
Hairston  v.  Hall,  3  Call  218,  561 

Hairston  v.  Woods,  9  Leigh  308,  377 
Hall  V.  Smith  &c.  3  Munf.  550,  519. 552 
Halliday  v.  M'Dougall  &c.  20  Wend. 

81,  425. 430 

Hamlin's  adm'r  v.  Atkinson  &c. 

6  Rand.  579,  453 

Harker  v.  The  mayor  &c.  of  New 

York,  17  Wend.  199,  404 

Harpers  &c.  v.  Patton,  1  Leigh  306,  277 
Harrisr.  Duncan,2^d.  4/-E.  158,  142,3 
Harris  v.  Harris,  2  Rand.  437,  552 

Harris  v.  Nicholas,  5  Munf.  483,  558 
Harrison's  adm'r  v.  Raine's  adm'r, 

5  Munf.  451,  517 

Hartley  v.  Case,  4  Barn.  4^  Cress. 

339  434 

Hartshorne  r.  Willis,  3  Munf.  557,  486 
Hawkes  &c.  v.  Salter,  4  Bingh.  715,  432 
Hawkins  «&.c.  r.  Plomer  &c.  2  /f^. 

Bl.  1048,  455 

Hawthorn  ».  Hunter,  8  Leigh  411,  28 
Heath  v.  Sansom  and  Evans,  2  Barn. 

Sr^d.2dl,  424 

Heath  &c.  v.  Blaker  «fcc.  2  Va.  Cas. 

215,  140 

Heffernan's  ex'or  ». Vidal,  6  Munf.  27,  557 
Henry  v.  Stone,  2  Rand.  461,  59.  66 

Henry   &c.  v.  Burbridge,  3  Bingh. 

JV.  C.  501,  506 

Hensworth  v.  Fowkes,  4  Barn  4^  -/id. 

449,  405 

Hey  wood  ».  Collinge,  9  M.  fy  E.  268,  592 
Hicks  V.  Beaufort,  4  Bligh.  JV.  C.  229,  437 
Highmore  v.  Primrose,  5  M.  S^  S.  65,  554 
Hite  V.  Long,  6  Rand.  457,  559 

Hoge  V.  Trigg,  4  Jtfww/.  150,  577 

Holland  v.  Bird  &c.  10  Bingh.  15,  574 
Holliday  and  wife  v.  Littlepage, 

2  Munf.  539,  562 

Hollingsworth  r.  Milton,  8  Lci^A  50,  444 
Holt  V.  Ward,  2  S<r.  938,  520 

Hooe  V.  Wilson,  5  Call  61,  423 

Herd's  ex'x  v.  Dishman,  2  Hen.  fy 

Munf.  600,  65 

Horrel  v.  M'Alexander,  3  Rand.  94,  496 
Hortons  &c.  v.  Townes,  6  Leigh  58,  16 
Hoskins  v.  Wright,  1  Hen.  <^  Munf. 

377,  549 

Hoyle  V.  Young,  1  Wash.  150,  590 

Hughes  V.  Moore,  7  Crunch  190,  24 

Humphreys  v.  Pratt,  5  Bligh's  par. 

cas.  JV.  S.  154,  575 

Hunter  v.  Fairfax's  devisee,  1  Munf. 

238,  386 

Hunter  v.  Jones,  6  Rand.  541 ,  561 

Hutson  T.  Lowry  and  Neville,  2  Va. 
Cas.  42,  351 


CASES   CITED. 


Ivii 


Isaacs  and  others,  5  Rand.  634,  594 

Isom  V.  Johns,  2  Munf.  272,  552 

J 
Jackson  r.  Anderson,  4  Taunt.  24,     524 
Jackson's  adm'x  v.  Henderson  &c. 

3  Leigh  196,  402.  430 

Jackson  Z7.  Kough,  1  Caines' rep.  251,  177 
Jackson  v.  Richards,  2  Caines'  rep. 

343,  429 

Jackson  v.  Webster,  6  Munf.  462,  61.  91 
James  v.  M'Cubbin,  2  Call  723,  558 

Jarrett's  adm'r  v.  Jarrett,  7  Leigh  93, 

24.494 
Jeffrey  v.  Bastard,  4  M.  i^  E.  823,  154 
Jenkins  v.   Hurt's  commissioners, 

2  Rand.  446,  408 

Johnson  v.  Garland,  9  Leigh  149, 

314, 15, 16 
Johnson  v.  Hackley,  6  Munf.  448,  517 
Johnson  v.  Wygant,  11  Wend.  48,  483 
Johnson  «&c.  v.  Wendle  &c.  3  Bingh. 

JV.  C.  225,  566 

Joliffe  V.  Higgins,  6  Munf.  3,  552 

Jones  V.  Bright  and  others,  5  Bingh. 

533,  .  530 

Jones  V.  Murdaugh,  2  Leigh  449,  559 
Jones  V.  Owen,  5  jid.  ^  E.  222,  554 

Jones  and  Ford  v.  Anderson  &c. 

7  Leigh  308,  302 

K 
Kane  v.  M.  A.  Society,  6  Cranck  192,  283 
Kayser  v.  Disher,  9  Leigh  357,  60, 

406.541 
Kemp  V.  Mundell  &c.  9  Leigh  12,  93. 406 
Kent  V.  Armistead,  4  Munf.  72,  562 

The  King  v.  The  sheriff  of  Hertford- 
shire, 1  Bam.  ^  M.  672,  352 
Kirtley  v.  Deck  &c.  2  Munf.  10,        591 
Knowles   «fcc.   v.   Mitchell   &c. 

l^EasfUd,  553 

L 
Lamb  v.  Harrison's  adm'r  &c. 

2  Leigh  525,  471 

Lancefield  v.  Allen  «&c.  1  Bligk's 

par.  cas.  JV*.  S.  592,  406 

Lane  v.  Harrison,  6  Munf.  573,  465 

Lane  v.  Thelwell,  1  M.  ^  W.  140,  500 
Larowe  v.  Harding's  adm'r,  2  Va. 

Cas.  203,  147 

Leaper  v.  Tatton,  16  East  420,  553 

Lease  v.  Box,  1  Wils.  121,  418 

Lee  V.  Love  «fe  Co.  1  Call  497,  515 

Lee  V.  Welch,  2  Sir.  793,  501 

Lee  &  Fitzhugh  v.  Chilton,  5  Munf. 

407,  264 

Lenox  «Skc.  v.  Roberts,  2  Wheat.  373,  431 
Lewis  r.  Adams  &c.  6  Leigh  320,  469 
Lewis  T.  Burr,  2  Caines'  cas.  195,  429 
Lewis  V.  Farrel,  1  Sir.  114,  592 

Lewis  r.  Long,  3  Munf.  136,  509 

Lew^is  V.  Weldon  and  others, 

^  Rand.  "71,  492,9 

viii 


Lindenberger  &c.  v.  Beall,  6  Wheat. 

104,  431 

Lithgow  V.  Com.  2  Fa.  Ca5.  305,  404 
Livingston  v.  Refers,  1  Caines' s 

rep.  584,  501 

Lockridge  v.  Carlisle,  6  Rand.  20,  482 
Lomax  v.  Picot,  2  Rand.  247,  423 

Love  V.  Ross,  4  CaH  604,  482 

Lundie  v.  Robertson,  7  East  231,  437 
Lynch  r.  Thomas,  3  Leigh 

682,  49.561,2 

M 
Mack  V.  Spencers,  4  Wend.  411,         553 
Mackay  &c.  v.  Bloodgoods,  9  Johns. 

285,  415 

Mackie's  ex'or  v.  Davis  &c.  2  Wash. 

219. 231,  515 

Macon  v.  Crump,  1  Call  575,  496, 8 

Maitland  v.  M'Dearman,  1  Va.  Cas. 

131,  147 

Manns  v.  Givens  &c.  7  Leigh  689,     342 
Manufactory — Union  cotton  v.  Lob- 
dell  «&c.  13  Johns.  462,  405 
Marietta  beink  v.  Pindall,  2  Rand. 

477,  418 

Marine  insurance  company  v. 

Young,  1  Cranch  331,  499 

Marshall  v.  Buzzard,  Gilm.  9,  591,2 

Marsteller  «fec.  v.  M'Clean, 

7  Cranch  156,  86 
M.  A.  Society  v.  Faxon  &c. 

6  Wheat.  606,  283 

M.  A.  Society  v.  Korn  &c.  7  Cranch 

396,  283 

M.  A.  Society  v.  Stone  &c.  3  Leigh 

218,  283 

M.  A.  Society  v.  Walls's  ex'or, 

1  Wheat.  279,  283 

The  mayor  &c.  of  Reading  r. 

Clarke,  4  Barn.  ^  Md.  268,  565 

Mays  V.  Callison,  6  Leigh  230,  575 

M'Clung  T.  Arbuckle,  6  Munf.  315,  517 
M'Daniel  &c.  v.  Browns  ex'or, 

8  Leigh  218,  297 
M'Farland  v.  Hunter,  8  Leigh  489,  57 
M'Kenzie  v.  Hancock,  Ryan  S^ 

Moody  436,  528 

M'Kinstrey  v.  Solomons,  2  Johns. 

rep.  62,  497,  8 

M'Million  v.  Dobbins,  9  Leigh  422,  135 
M'Neil  Slc.  v.  Baird,  6  Munf  316,  423 
M'Williams  v.  Smith,  1  Call 

125  519. 552 

M'Wi'lliams  t.  Willis,  1  Wash.  199,  545 
Medina  v.  Stoughton,  1  Salk.  210,  527 
Meredith's  adm'r  v.  Duval,  1  Munf. 

82,  472 

Meredith's  adm'x  v.  Daval,  1  Munf.    . 

76,  24. 472 

Michie  v.  Wood's  ex'or,  5  Rand. 

571,  445 

Miller  v.  Marshall  «&c.  1  Va.  Cas. 

158,  348 


Iviii 


CASES   CITED. 


Miller  ».  M'Leur,  Gilm.  338,  473 

Milligan  v.  Thorn,  6  Wend.  412,  590 
Mills  V.  The  bank  of  the  United 

States,  11  Wheat.  431,  .     429 

Milstead  v.  Redman,  3  Munf.  219,  520 
Mitchell  V.  Scott  &c.  Henrico  circ. 

ct.  June  1840,  91 

Monroe  v.  Webb's  ex'or,  4  Munf. 

173,  575 

Moore  v.  Chapman,  3  Hen.  S^  Munf. 

260,69,  361.554 

Moore  v.  Fenwick,  Gilm.  215,  407 

Moore's  adm'r  v.  Dawney  «fcc. 

3  Hen.  <^  Munf.  127,  558 

Mortimer  v.  Bramfield,  3  Munf.  122,  562 
Morton  v.  Rogers,  14  Wend.  580,  423, 4 
Mosely  v.  Boush  &c.  4  Rand.  392,  552 
Mosely  v.  Jones,  5  Munf.  23,  501 

Moss  V.  Stipp,  3  Munf.  159,  550 

Moss  &c.  V.  Moss's  adm'r,  4  Hen.S^ 

Munf.  304,  455 

Mowry  v.  Miller,  3  Leigh 

561,  403.  591, 2 

Murphy  &c.  v.  Staton,  3  Munf.  239,  522 
Murray  v.  Nichols  «&c.  6  Bingh. 

530,  146 

Murrell  v.  Johnson's  adm'r,  1  Hen. 

4/-  Munf.  450,  471 

Myer  «&c.  v.  Cole  &c.  12  Johns. 

349,  406 

Myers  «fe  Son  v.  Friend  &  Scott, 

1  Rand.  12,  422. 560 

N 
Naylor  v.  President  «&c.  of  literary 

fund,  5  Leigh  71,  284 

Nelson  v.  Anderson,  2  Call  286,  473 

Nelson  v.  Fotterall,  7  Leigh 

179,  426, 7. 431 

Nelson  v.  Fotterall,  7  Leigh  220,  441 
Newby's  adm'r  v.  Blakey,  3  Hen.  4' 

Munf.  57,  562 

Newcomb  v.  Drummond,  4  Leigh  57,  446 
Newell  r.  Wood,  1  Jlfuw/.  555,  141 

Newsum  v.  Newsum,  1  Leigh  86,  562, 4 
Newton  v.  Wilson,  3  Hen.  8^  Munf. 

470,  445 

Noland  v.  Cromwell,  6  Munf.  185,  181,  2 
Norris  v.  Salomonson,  4  Scott  257,  438 
Northrup  v.  Northrup,  6  Cow.  296,     483 

O 
Obin  V.  Knott,  Fortescue  339,  63 

dinger  v.  M'Chesney,  7  Leigh 

660,  574. 590 

Onondaigua  county  bank  v.  Carr, 

17  Wend.  443,  404 

Overton  and  wife  v.  Hudson, 

2  Wash.  172,  534 

P 
Page's  adm'r  v.  The  bank  of  Alex- 
andria, 7  Wheat.  35,  553 
Parker  v.  Crane,  6  Wend.  647,  501 
Parker  v.  Elliott,  6  Munf.  587.  Gilm. 
23,                                                    594 


Pasteur  r.  Parker  and  wife,  3  Rand. 

458,  545 

Pate  V.  M'Clure  &c.  4  Rand.  170,  436 
Patershall  v.  Tranter,  3  Ad.  ^  E. 

103,  529 

Payne's  ex'or  v.  Sampson,  2  W'asA. 

155,  487 

Pearpoint  v.  Henry,  2  Wash.  192,  565 
Peasley  v.  Boatwright,  2  Leig-A  195,  408 
Pegram  v.  Thornton's  adm'r,  467 

Pell  V.  Lovett,  19  Wend.  546,  405 

Pendred's  adm'r  v.  Pendred,  2  Va. 

Cas.  93,  147 

The  people  v.  Brush,  6  Wend.  454,  456 
The  people  v.  Haddock,  12  Wend. 

475,  136 

The  people  v.  The  judges  of  West- 
chester, 4  Cow.  73,  344 
The  people  v.  Van  Eps,  4  Wend. 

387,  406 

The  people  at  the  relation  of  Trem- 

per  V.  The  judges  «&c.  of  Ulster, 

1  Johns,  rep.  64,  345 

Peter  v.  Cocke's  ex'or,  1  Wash. 

257,  407 

Perkins  &c.  v.  Giles,  governor, 

9  Leigh  401,  455, 56 

Phillips  V.  Shaw,  4  Barn.  4-  Aid. 

435,  403 

Pierce  v.  Crafts,  12  Johns.  90,  553 

Pierce  v.  Harris  &c.  10  Bingh.  331,  134 
Pilmore  v.  Hood,  5  Bm^A.  JV.  C.  97,  578 
Pleasants  v.  Clements,  2  Leigh  474,  78 
Pleasants  ??.  Pendleton,  6  Rand.  503,  523 
Pluck  7?.  Diggs  &c.  5  Bligh's  par. 

cas.  JV.  S.  31,  157 

Poindexter  v.  Waddy,  6  Munf.  420,  415 
Poindexter  v.  Wilton  &c.  3  Munf. 

183,  486 

Polhill  V.  Walter,  3  Barn.  ^  Ad. 

114,  584 

Pollard  &c.  v.  D wight  &c.  4  Cranck 

421,  485 

Pope  V.  Tillman,  7  Taunt.  642,  155 

Porter  v.  Nekervis,  4  JJand.  359,  407 
Potten  V.  Bradley,  2  Moore  ^  Payne 

78,  155 

Potter  V.  Scoville,  5  Wend.  96,  175 

Poultin  V.  Lattimore,  9  Barn.  ^ 

Cress.  259,  529 

Preston  v.  Bowen,  6  Munf.  271,  578 
Preston  v.  Harvey,  2  Hen.  4'  Munf. 

55,  170 

Price  V.  Easton,  4  Barn.  ^  Ad. 

433,  501 

Price  V.  Harris  «&c.  10  Bingh. 

557,  148 

Priddy  &c.  v.  Henbrey,  1  Barn.  ^ 

Cress.  674,  443 

Proudfit  T.  Murray,  1  Call  394,  140 

Pulliam's  ex'x  v.  Johnson  &c. 

4  Munf  71,  ^        414 

Purcell  V.  Macnamara,  9  East  157,    403 


CASES    CITED. 


lix 


Raborg  «&c.  r.  Peyton,  2  Wheat. 

385,  443, 4 

Ragsdale  v.  Batte,  2  Wash.  201,  447 

Randolph  v.  Hill,  7  Lci^A  383,  568 

Rathburn  r.  Emigh,  5  Wend. 

409, 10,  406 

Ray  T.  Clemens,  6  Leigh  600,  136 

Raynolds  &c.  r.  Douglass  &c. 

12  Peters  505,  437 

Reading  mayor  &c.  v  Clarke, 

4  Barn,  fy  Aid.  268,  565 
Reed  v.  Hanna's  ex'or,  3  Rand.  59,  84 
Rees  V.  Conococheague  bank, 

5  Rand.  326,  404. 423 
Reeves  &c.  v.  Ward's  ex'x, 

2  Bingh.  .V.  C.  235,  80 

Renner  v.  The  bank  of  Columbia, 

9  Wheat.  581,  429 

Respublica  r.  Cobbett,  3  Yeates  93,  260 
Richards  t.  Brockenbrough's 

adm'r,  1  Rand.  449,  497 

Richardson  x.  Perkins,  4  Munf.  512,  575 
Robertson  &c.  v.  Taylor,  2  Chitty 

454,  455 

Robertson  &c.  v.  Williams  &c. 

5  Munf.  381,  422 
Robinson  v.  Alexander,  8  Bligh. 

JV*.  S.  352,  85 

Rochefeller  v.  Robinson,  17  Wend. 

206,  553 

Rowe  V.  Young,  2  Brod.  ^  Bingh. 

165,  428 

Royall  V.  Eppes,  2  Munf.  478,  561,  2 

Ruble  r.  Turner  &c.  2  Hew.  4^ 

J»/wm/.  38,  78 

Russell  T.  Langstaffe,  Doug.  514,       422 

S 
Salter  v.  Burt,  20  Wend.  206,  429 

Saunders  v.  Marshall  &c.  4  Hen. 

^  JtfMn/.  455,  516 

Schimmelpinnick  &c.  v.  Bayard 

&c.  1  Peters  285,  427 

Schultz  V.  Astley,  2  Bingh.  JV.  C. 

544,  421 

Scott  r.  Hornsby,  1  Call  46,  140,  41 

Scott's  ex'ors  v.  Call,  1  Wash.  115,  441 
Sexton  T.  Holmes,  3  Munf  566,  502 

Sexton  &c.  e.  Johnson,  10  Johns. 

418,  552 

Shaver  v.  White  &  Dougherty, 

6  Munf.  110,  590 
Shelton  ».  Pollock  «&  Co.  1  /Tew.  fy 

Munf  423,  415 

Shelton's  ex'ors  r.  Welsh's  adm'rs, 

7  Lej^A  175,  335.  382.  406 
Shobe's  ex'or  v.  Carr  and  wife, 

,     3  Munf.  10,  84 

Sikes  v.  Ransom,  6  Johns,  rep.  279,  343 
Simms  &c.  v.  Slacum,  3  Cranch 

300,  471 

Sims  v.  Alderson,  8  Leigh  479,  481 

Skipwith  V.  Baird,  2  Wash.  165,         441 


Skipwith  V.  Morton  &  Co.  2  CoZZ 

277,  83 

Slacum  V.  Pomeroy,  6  Cranch  221,  441 
Slacum  V.  Simms  «&c.  5  Cranch  363,  471 
Slaughter  v.  Green  jyid  others, 

1  Rand.  3,  521 
Slacum  «&c.  v.  Despard,  8  Wend. 

615,  483 

Smith  V.  Michie's  ex'or,  1  Wash. 

135,  .  549 

Smith  v.  Richards,  13  Peters  36,  67 

Smith  v.  Segar,  3  Hen.  S^  Munf. 

394,  443, 4 

Smith  V.  Westall,  1  Ld.  Raym.  316,  550 
Smith  and  others  v.  Jansen, 

8  Johns.  Ill,  472 

Smith  &  Richard  v.  Triplett  «Sr. 

Neale,  4  Leigh  590,  517 

Smith  and  wife  v.  Townes's  adm'r, 

4  Munf  193,  561 

Smith's  adm'r  v.  Smith,  2  Johns., 

235,  552 

Snow  V.  Peacock,  3  Bingh.  406,  566 

Snow  &c.  V.  Saddler,  3  Bingh.  610,  566 
Society — Culpeper  agricultural 

and  manufacturing  v.  Digges 

&c.  6  Rand.  165,  404 

Solarte  &c.  v.  Palmer  &c. 

7  Bingh.  530,  435 

Solomons  v.  Stavely,  3  Doug.  300,  441 
Spencer  t).  Pilcher,  8  LeiVA  565,  567 
Spottswood  V.  Price,  3  Hen.  ^ 

Munf.  123,  447 

Spyer  v.  Thelwell,  2  Cro.  M.  ^ 

R.  692,  S.  C.  Tyr.  ^  Gr.  191,  500 

Starkey  v.  Cheeseman,  1  Salk.  128,  506 
State  V.  Whyte  &c.  2  mtt  ^ 

M'C.  174,  347 

State  bank  v.  Hurd,  12  Mass.  R. 

172,  552 

Steele  r.  Boyd,  6  Leigh  547,  243 

Steptoe's  adm'rs  v.  Harvey's 

ex'ors,  7  Leigh  501,  66.  85 

Stevens  &c.  v.  Bransford  &c. 

6  Leigh  246,  469 

Stevenson  v.  Hunter,  6  Taunt.  406,  402 
Strange  v.  Wigney,  6  Bingh.  677,  566 
Stratton  v.  Hill,  3  Price  253, 

2  Chitty  226,  443 
Stratton  v.  M.  A.  Society,  6  Rand.  22, 283 
Stubb's  V.  Burwell,  2  Hen.  ^ 

Munf.  536,  515,  19 

Sutton  V.  Mandeville,  1  Munf.  407,  530 
Swasey  v.  Little  «&c.  7  Pick.  296,  542 
Syme  v.  Griffin,  4  Hen.  ^  Munf. 

277,  478 


Tabb's  adm'r  v.  Binford,  4  Leigh 

132,  487, 9 

Taliaferro  v.  Robb,  2  Call  2-58,  543 

Tapp  V.  Lee,  3  B.  ^  P.  371,  583 

Taylor  v.  Beck,  3  Rand.  323,  425 


Ix 


CASES   CITED. 


Taylor  v.  Rainbow,  2  Hen.  ^ 

Munf.  423,  554 

Taylor  v.  Richards,  2  Mtmf.  8,  80 

Taylor  adm'r  of  Holloway  v.  Bruce, 

Gilm.  81,  421 

Taylor's  adm'r  v.  The  bank  of 

Alexandria,  5  Leigh  471,  403 

Taylor's  devisees  v.  Rightmire, 

8  Leigh  468,  188 

Terry  &c.  v.  Parker,  6  M.  ir  E-  502,  435 
Thompson  v.  Gumming,  2  Leigh 

321,  426 

Thornton  v.  Wynn,  12  Wheat.  187,  436 
Throckmorton  v.  Cooper's  lessee, 

3  Munf.  93,  180 

Tinney  v.  Ashley  &c.  15  Pick.  546,  482 
Tomlinson  v.  Gell,  6  £d.  S^  E.  564,  543 
Townsley  v.  Sumrall,  2  Peters 

170,  8,  9,  426.  430 

Travis  v.  Claiborne,  5  Munf.  435,  564 
Truss  V.  Old,  6  Rand.  556,  555 

Turberville  v.  Self,  4  CaZi  580,  158 

Turner  v.  Leech,  4  Sarn.  4/-  j3Zd.  451,  431 
Turner  &c.  v.  Chinn's  ex'ors, 

1  Hen.  4/-  Munf.  53,  449 

U 
Union'cotton  manufactory  v.  Lob- 
dell  &c.  13  Johns.  462,  405 
United  States  v.  Hamilton, 

3  DaL  17,  356 
United  States  bank  ®.  Corneal, 

2  Peters  542,  428 
United  States  bank  v.  Daniel  &c. 

12  Peters  32,  425 

V 
Van  Orden  v.  Van  Orden, 

10  Johns.  30,  542 

Vaughan's  adm'r  v.  Winckler's 

ex'or,  4  Munf.  136,  560 

Vine  V.  Saunders,  4  Bingh.  96,  555 

Violet  V.  Patton,  5  Cranch, 

142.  153,  516.  544 

W 
Waddill  V.  Chamberlayne,  gen.  ct. 

1735,  Jefferson's  rep.  10,  579 

Waggoner  v.  Gray's  adm'rs,  2  Hen. 

^  Munf.  611,  543 

WagstafFe  v.  Boardman,  9  Dow.  fy 

Ry.  248,  554 

VS^alden  v.  Craig,  9  Wheat.  576,  176 

Walker  v.  Laverty  and   Gantley, 

6  Munf.  487,  436 

Wallace  v.  M'Connell,  13  Peters  136,  428 
Waller's  ex'ors  v.  Ellis,  2  Munf.  88, 

417,  18 
Ward  V.  Vass,  7  Leigh  135,  244 

Ward  &c.  v.  The  Fairfax  justices, 

4  JVfMw/.  494,  452 
Washington  bank  v.  Triplett  and 

Neale,  1  Peters  35,  426,  8,  9 

Watkins  v.  Crouch  &  Co.  5  Leigh 

522,  428 

Watkins'a  ex'ors  v.  Tate,  3  CaM251,  413 


Watson  V.  Denton,  7 Car.  S^  Payne  85,  529 
Watson  V.  Lyle's   adm'r,   4   Leigh 

236,  85.  330,  1 

Waynam  v.  Bend,  1  Campb.  175,  553 
Webb  V.  Baker,  7  Ad.  i^  E.  841,  500 

Webster  &c.  v.  Hoban,  7  Cranch  399,  524 
Weedon  v.  Timbrell,  5  T.  R.  357,  593 
Weld  V.  Fisher,  4  PicA;.  421,  553 

Wells  V.  Girling,  1  Gow.  21.  note,  552 
Wells  r.  Horton,  4  £m^A.  40,  550 

Wheeler  v.  Curtis  &c.  11  JFcntZ.  653,  551 
White  V.  Clay's  ex'ors,  7  Leigh  68,  84 
White  V.  Toncray,  9  Leigh  347,  93 

Whitlock  V.  Ramsay's  adm'x,  2  Munf. 

510,  407 

Whitworth  v.  Adams,  5  Rand.  333, 

375.  425.  519 
Wilkes  V.  Jackson,  2  Hen.  fy  Munf. 

355  78 

Wilkinson  v.  Hendrick,  5  Call  12  276 
Wilkinson  &,  Co.   v.   Holloway, 

7  Leigh  277,  87 

Williams  v.  Jones,  5  Barn.  ^  Cress. 

108,  550 

Williams  v.  Knubley,  7  East  128,  496 
Williams  v.  Moore,  3  Jlfwra/.  310,  566 
Williams  v.  Waring,  10  Barn.  ^ 

Cress.  21,  428 

Wilson  V.  Bank  of  Mount  Pleasant, 

6  Leigh  570,  62 

Wilson  V.  Codman's  ex'or,  3  Cranch 

208,  9,  84.  419 

Wilson  V.  Crowdhill,  2  Mvnf.  302,  443, 4 
Wilson  V.  Isbell,  5  Call  427,  8,  166 

Wilson  V.  Lenox,  1  Cranch  193,  426 

Wilson  V.  Shackleford,  4  Rand.  5,  577 
Wilson  V.  Wallace,  8  Serg.  ^  Rawle 

53,  60 

Wingfield  v.  Crenshaw,  4  jffen.  <^ 

Munf.  474,  517 

Winston  v.  Overseers  of  poor,  4  CaH 

357,  150.  370 

Winston's  ex'or  v.  Francisco,  2  Wash. 

187,  502 

Wise  V.  Withers,  3  Cranch  331,  558 

Withers's  ex'x  v.  Withers's  ex'or, 

6  Munf.  10,  562 

Wood  V.  Carr's  ex'or,  1  Call  232,  431 
Wood  V.  Commonwealth,  4  Rand. 

330,  266 

Woodford's  heirs  v.  Pendleton,  1  Hen. 

8^  Munf.  303,  476.  487,  8 

Woodson  V.  Johns,  3  Munf  230,  473 
Woody  V.  Flournoy,  6  Munf.  306,  502 
Woody  V.  Flournoy,  6  Munf.  506,  533 
Wright's  adm'r  v.  Stockton,  5  Leigh 

153,  77 

Y 
Young  V.  Gooch  and  Brown,  2  Leigh 

596,  555 

Yoting  V.  Gregorie  &c.  3  Call  446,  591 
Young  V.  Murphy,  3  Biiigh.  JV.  C.  54,  521 
Young  V.  Preston,  4  Cranch  239,        498 


ERRATA. 

On  pages  39  and  33.  the  forms  numbered  30,  31,  32  and  33  should  have 

been  numbered  8,  9,  10  and  11. 
On  page  92.  in  last  line  of  No.  73,  for  heretfore  read  therefore 
On  page  103.  after  No.  29,  the  forms,  instead  of  being  numbered  27,  28, 

&c.,  to  the  end  of  the  chapter,  should  have  been  numbered  30,  31,  &c. 
From  page  509  to  544.  the  forms,  instead  of  being  numbered  11, 12,  &c., 

should  be  12, 13,  &.C. 


BOOK  I. 

FORiVIS  IX  THE  COURTS  OF  LAW  IN  CIVIL  CASES. 


CHAPTER  I. 

PROCESS    BY    WHICH    COMMON    PERSONAL    ACTIONS    ARE    COM- 
MENCED. 


1 .  Attorney'' s  memorandum  for  the  capias. 

Issue  a  capias  for  A.  B.  y.  C.  D.  and  E.  F.  of  a  plea  of  debt 

for  $ with   interest  thereon  from  the day  of 

till  paid,  and  S charges  of  protest.  Damage  S  20.  En- 
dorse— "  This  is  an  action  of  debt  founded  upon  a  note  in 
writing  of  the  defendant  C.  D.  for  the  payment  of  money,  which 
note  was  made  negotiable  and  payable  at  the  bank  of  Virginia^ 
was  endorsed  by  the  defendant  E.  F.  and  has  been  protested 
for  nonpayment.  Bail  is  required  of  the  defendant  C.  D.  but 
no  bail  is  required  of  the  defendant  E.  F. 

G.  H.  attorney  for  pltf." 

To  the  clerk  of  the  circuit  superior  court  of  law"^ 
and  chancery  for  the  county  of  H.  (or,  to  the  i 
clerk  of  the  county  court  of  H.  or,  to  the  clerk  [ 
of  the  court  of  hustings  for  the  city  of  /?.)  J 

In  Other  cases,  the  memorandum  will  conform  to  the  nature 
of  the  action  ;  as  for  example — 

In  debt  on  a  penal  ohlicrntion.     of  a  plea  of  debt  for  S . 

Damage  S  20.  Endorse — "This  is  an  action  of  debt  founded 
upon  a  writing  oblis^atory  for  the  payment  of  money.  Bail  is 
required."  Or,  "  This  action  is  founded  upon  a  bond  with  col- 
lateral condition.     No  bail  is  required." 

In  debt,  lohere  no  penalty  and  no  protest.     of  a  plea  of  debt 

for  $ with  interest  thereon  from  the day  of 

till  paid.     Damage  $20.     Endorse — "  This  is  an  action  of  debt 


2  Process  to  commerice  personal  actions. 

founded  upon  a  note  in  writing  for  the  payment  of  money.  Bail 
is  required."  Or,  if  the  paper  be  sealed,  "  This  is  an  action 
of  debt  founded  upon  a  single  bill  for  the  payment  of  money. 
Bail  is  required." 

In  covenant.     of  a  plea  of  covenant  broken.     Damage 

$ .     Endorse — "  This  is  an  action  for  the  breach  of  a 

covenant  made  by  the  defendant  with  the  plaintiff.  Bail  is 
required." 

In  detinue.     of  a  plea  of  detinue  for  a  negro  man  slave 

named ,  of  the  value  of  $ .     Damage  $ . 

Endorse — "  This  is  an  action  of  detinue  for  the  slave  within 
named.     Bail  is  required." 

In  case.    — —  of  a  plea  of  trespass  on  the  case.     Damage 
Endorse — "  This  is  an  action  for  the  nonperformance 


of   promises  and   undertakings.     No   bail  is    required."     Or, 

"  This  is  an  action  for  the  conversion  by  the  defendant  of 

the  property  of  the  plaintiff.  No  bail  is  required."  Or,  "  This 
is  an  action  for  slanderous  words  spoken  of  the  plaintiff  by 
the  defendant.  No  bail  is  required."  Or,  "  This  action  is  insti- 
tuted against  the  defendant  for  carrying  a  slave  named , 

of  the  value  of  $ ,  owned  by  the  plaintiff,  out  of  this 

commonwealth"  (or,  "  out  of  the  county  of  H.  into  the  county 
of  C)  without  the  consent  of  his  owner,  and  with  intention  to 
defraud  or  deprive  the  owner  of  his  slave.  And  costs  and  ex- 
penses having  been  incurred  by  the  plaintiff  to  the  amount  of 

$ in  attempting  to  regain  his  said  slave,  the  object  of  this 

action  is  to  recover  from  the  defendant  double  the  value  of  the 
slave,  together  with  double  the  amount  of  the  said  costs  and 
expenses.     Bail  is  required." 

In  trespass.     of  a  plea  of  trespass.     Damage  $ 


Endorse — "  This  is  an  action  of  trespass  for"  &c.  (stating  in 
general  terms  the  nature  of  the  trespass.)  "  No  bail  is  re- 
quired." 

In  T.  A.  ^  B.     of  a  plea  of  trespass,  assault  and  bat- 
tery.    Damage  $ .     Endorse — "  This   is   an   action   of 

trespass,  assault  and  battery.     No  bail  is  required." 

In  T.  A.  ^  B.  and  false  imprisonment.     of  a  plea  of  tres- 
pass,  assault  and  battery  and   false  imprisonment.     Damage 

$ .     Endorse — "This  is  an  action  of  trespass,  assault 

and  battery  and  false  imprisonment.     No  bail  is  required." 


Process  to  commence  pei'sonal  actions.  3 

2.   Capias  to  institute  an  action.     1  Rob.  Prac.  120  to  126. 

The  commonwealth  of  Virginia  to  the  sheriff  of  if.  county, 
greeting:  We  command  j'ou  that  you  take  C.  D.  if  he  be  found 
within  your  baiHwick,  and  him  safely  keep,  so  that  you  have 
his  body  before  the  judge  of  our  circuit  superior  court  of  law 
and  chancery  for  our  said  county,  at  the  courthouse,  on  the 
first  day  of  the  next  term  (or,  at  the  clerk's  office  of  our  circuit 
superior  court  of  law  and  chancery  for  our  said  county,  at  the 

rules  to  be  holden  for  the  said  court  on  the  first  monday  in  

next;  or,  before  the  justices  of  the  court  of  our  said  county,  at 
the  courthouse,  on  the  first  day  of  the  next  quarterly  session  of 
the  said,  court)  to  answer  A.  B.*  of  a  plea  of  &c.  (here  describe 
the  action  according  to  the  memorandum).  And  have  then  there 
this  writ.  Witness  J.  R.  clerk  of  our  said  court,  at  the  court- 
house, this day  of in  the year  of  our  foundation. 

*  If  the  plaintiff  be  an  infant,  the  memorandum  and  the  writ 
will  both  describe  him  as  *' A.  B.  an  infant  under  the  age  of 
21  years,  who  sues  by  E.  F.  his  next  friend."  If  the  action  be 
qui  tarn,  the  memorandum  will  be  "  A.  B.  who  as  well  for  the 
commonwealth'^  (writ  will  say  "  us")  "  as  for  himself  in  this  be- 
half prosecutes."  If  the  plaintiffs  be  a  corporation,  then  they 
sue  by  their  corporate  name,  precisely  as  it  is. 

Endorsement.  This  will  be  according  to  the  memorandum. 
The  words  "  No  bail  is  required"  will  be  omitted  in  the  memo- 
randum and  in  the  endorsement,  where  an  application  is  made 
to  a  judge  or  justice  of  the  peace  to  direct  bail. 

3.  Affidavit  to  obtain  hail.     1  Rob.  Prac.  129. 

H.  county,  to  wit : 

A.  B.  the  plaintiff  in  the  writ  hereunto  annexed,  this  day 
personally  appeared  before  me,  a  justice  of  the  peace  for  the 
said  county,  and  made  oath  that  the  action  of  the  said  plaintiff 

is  brought  to  recover  the  sum  of  S ,  due  and  owing  from 

C.  D.  the  defendant  in  the  said  writ,  to  the  plaintiff,  for  goods 
sold  and  delivered  by  the  said  plaintiff  to  the  said  defendant,  at 
his  request.  And  the  said  plaintiff  further  made  oath  that  the 
defendant  is  now  justly  indebted  to  him  that  sum,  and  that  he 
the  said  plaintiff  has  good  cause  to  apprehend,  and  verily  be- 
lieves, that  the  said  defendant  intends  to  depart  out  of  this 
commonwealth  and  beyond  the  jurisdiction  of  the  court,  befbre 
judgment  can  be  obtained  against  him  in  the  said  action,  so  that 
process  of  execution  upon  the  said  judgment,  when  it  shall  be 
obtained,  will  be  unavailing,  unless  the  defendant  be  held  to 
bail.     Given  under  my  hand  this day  of . 


4  Process  to  commence  personal  actions. 

Justice^ s  endorsement  on  the  writ.     1  Rob.  Prac.  129.  f 

Proper  affidavit  having  been  made,  the  sheriff  is  directed  to 
take  from  the  defendant  bail  sufficient  for  $ . 

Another  affidavit.* 

Hampshire  county,  to  wit : 

To  the  sheriff  of  said  county. 
Before  me  the  subscriber,  a  justice  of  the  peace  in  and  for 
said  county,  William  Armstrong,  agent  for  the  within  plaintiff, 
made  oath  that  the  within  writ  is  sued  out  to  recover  the  mesne 
profits  of  certain  lands  in  said  county,  of  said  plaintiff's, 
which  said  defendant  held  for  many  years,  and  which  mesne 
profits,  within  the  said  Wm.  Armstrong' s  own  knowledge,  are 
worth  or  would  amount  to  one  thousand  dollars  at  least,  and 
that  the  said  William  ArmslroJig  hath  good  cause  to  believe  that 
said  defendant  will  move  out  of  this  commonwealth  before  the 
determination  of  said  suit:  that  sq.\6.  Jeremiah  Ashby  is  an  in- 
habitant of  the  state  of  Ohio  at  this  time.  You  are  therefore 
hereby  commanded  to  take  good  bail  of  the  said  George  Kiger 
in  the  sum  of  one  thousand  dollars.  Given  under  my  hand  this 
21st  day  of  August  181S.  Henry  CooJcus. 

*  This  is  a  copy  of  the  affidavit  in  Ashhy  v.  Kiger,  3  Rand.  50.  cited  in  1  Rob. 
Prac.  20.  The  affidavit  was  considered  by  the  court  of  appeals  in  that  case  to  be 
"  full  and  a  proper  affidavit." 

4.  Summons  against  a  judge  of  the  general  court.     1  Rob.  Prac. 

20  and  130. 

The  commonwealth  &c.*  Whereas  A.  B.  desires  to  sue 
C.  D.  of  a  plea  of  &c.  (here  describe  the  action)  and  the  said 
C.  D.  being  a  judge  of  the  general  court,  and  the  judge  of  the 

circuit  superior  court  of  law  and  chancery  for  the circuit, 

and  residing  in  the  county  of ,  one  of  the  counties  com- 
posing the  said  circuit,  the  suit  is  one  which,  in  the  case  of  any 
other  person,  would  have  been  proper  for  his  jurisdiction;  but 
because  the  said  C.  D.  is  interested  in  the  said  suit,  it  is  proper 
the  same  should  be  instituted  in  some  court  within  an  adjacent 
circuit:  Therefore  we  command  3'ou  that  you  summon  the  said 
C.  D.  to  appear  before  &c.  [or,  at  &c.)  to  answer  the  said  A.  B. 
of  the  plea  aforesaid.     And  have  &c.     Witness  &c. 

*  The  law  provides  that  the  process  "  may  be  served  in  the  circuit  to  which 
such  judge  shall  be  allotted,  or  in  which  he  shall  reside ;"  and  it  may  be  directed 
accordingly. 


Process  to  commence  'personal  actions.  5 

5.  Summons  against  any  other iJrivilegcd  2>erson.     1  Rob.  Prac.  130. 

We  command  yon  that  3^ou  summon  C.  D.  (he  being  tlie 
governor  of  ibis  commonwealtl] — or,  he  being  a  member  ot"  the 
council  of  state — a  judge  of  the  court  of  appeals — or  the  sheriff 
of  the  said  county)  to  appear  before  &c.  {or,  at  &c.)  on  &c. 
(as  in  the  capias.) 

6.  Summons  against  a.  hanJc  in  a  suit  instituted  in  the  county  where 

a  branch  is  established.     1  Rob.  Prac.  20.  21. 

Whereas  A.  B.  has  a  controversy  with  the  president,  direc- 
tors and  company  of  the  Farmers  bank  of  Virginia,  a  bank 
within  this  commonwealth,  established  by  the  laws  thereof, 
which  controversy  has  arisen  out  of  transactions  between  the 
said  A.  B.  and  the  branch  of  the  said  bank  in  the  town  of  Pe- 
tersburer,  and  the  said  A.  B.  desires  to  institute  his  suit  on  the 
said  controversy  in  the  circuit  superior  court  of  law  and  chan- 
cery for  the  said  town  oi  Petersburg,  in  which  town  the  office  of 
discount  and  deposit  of  the  said  branch  bank  is  established  : 
Therefore  we  command  you  that  3'ou  summon*  the  president, 
directors  and  company  of  the  Farmers  bank  of  Virgiiiia  to 
appear  &c. 

*  According  to  the  words  of  the  statute,  the  suit  is  to  be  instituted  "  against  any 
such  branch  bank  f  which,  literally  carried  out,  would  be  giving,  for  a  demand 
against  a  corporation,  a  suit  against  part  of  the  corporation.  All  that  the  legisla- 
ture probably  intended  was  to  allow  a  suit  against  the  corporation  to  be  brought 
in  the  county  or  corporation  where  the  branch  was  established,  and  to  allow  the 
summons  instituting  such  suit  to  be  executed  "  on  the  president,  or,  in  his  absence, 
the  cashier  of  such  branch  bank." 

7.  Summons  against  a  corporation  in  any  other  case.     1  Rob.  Prac. 

130.     Sess.  Acts  1836-7,  p.  44.  ch.  68. 

We  command  you  that  you  summon  the  .&:c.  (describing  the 
corporation  by  its  corporate  name)  to  appear  &c. 

8.  Confession  of  judgment  in  the  ojice.     Sess.  Acts  1839-40,  p. 

46.  ch.  53.  §  1. 

This  day  came  as  well  the  plaintiff  by  his  attorney,  as  the 
defendant  in  his  proper  person,  and  the  said  defendant  acknow- 
ledges the  plaintiff's  action  for*  the  debt  and  interest  in  the  said 
w-rit  mentioned,  and  the  costs:  Therefore  it  is  considered  that 
the  plaintiff  recover  against  the  defendant  $  100.  with  interest 
thereon  to  be  computed  after  the  rate  of  six  per  centum  per 
annum  from  the day  of till  payment,  the  debt  and 


6  Process  to  commence  pei'sonal  actions. 

interest  aforesaid,  and  his  costs  by  him  about  his  suit  in  this 
behalf  expended.     And  the  said  defendant  in  mercy  &c. 

*  If  the  judgment  be  confessed  for  only  part  of  the  demand, 

say — "for  $ part   of   the  debt   {or,    damages)   in   the 

said  writ  mentioned,  with  interest  thereon  from  the day 

of till  paid,  and  the  costs:  and  the  plaintiff  being  willing 

to  take  a  judgment  for  the  same,  it  is  therefore  considered  that 

the  said  plaintiff  recover  against  the  defendant  the  said  $ , 

with  interest  thereon  to  be  computed  after  the  rate  of  six  per 

centum  per  annum  from  the  said day  of till"  &c. 

(as  before.) 

If  the  action  be  on  a  penal  obligation,  say — "  for  the  debt  in 
the  said  writ  mentioned,  and  the  costs :  Therefore  it  is  consi- 
dered that  the  plaintiff  recover  against  the  defendant  $  100.  the 

debt  aforesaid,  and  his  costs  &c.  mercy  &c.     But  this 

judgment,  by  consent  of  the  plaintiff,  is  to  be  discharged  by  the 

payment  of   $ ,   with    interest  thereon  to  be  computed 

after  the  rate  of  six  per  centum  per  annum  from  the day 

of till  payment,  and  the  costs." 

9.  Notice  by  defendant  in  custodrj,  that  he  will  con/ess  judgment  in 
the  clerk's  office.  1  Rob.  Prac.  137,  8.  Sess.  Acts  1839-40, 
p.  46.  ch.  53.  §  1. 

To  mr.  A.  B.  Being  now  in  custody  of  the  sheriff  of  the 
county  of  H.  upon  a  writ  of  capias  ad  respondendum,  sued  out  of 
the  circuit  superior  court  of  law  and  chancery  for  the  said 
county  against  me,  to  answer  you  of  a  plea  of  debt  for  $  100. 

with   interest  thereon  from  the day  of ;  notice  is 

hereby  given  you,  that  on  the day  of ,  betvi^een  the 

hours  of and ,  I  shall,  in  the  said  suit,  confess  judg- 
ment in  the  clerk's  office  of  the  said  court,  for  the  whole  amount 
of  your  demand,  with  costs,  or  for  such  part  thereof. as  you,  in 
person  or  by  attorney,  may  be  willing  to  take  a  judgment  for. 
Given  under  my  hand  this day  of . 

Or,  if  the  plaintiff  resides  out  of  the  county  or  corporation  : 

To  E.  F.  attorney  for  A.  B.  Being  now  in  custody  of  &c. 
upon  a  writ  &c.  to  answer  the  said  A.  B.  of  a  plea  of  debt  for 
&c.  and  the  said  A.  B.  residing  out  of  the  said  county  of  H. — 
notice  is  hereby  given  you,  as  his  attorney  employed  in  the  said 
suit,  that  on  &c.  between  &c.  I  shall,  in  the  said  suit,  confess  a 
judgment  in  &c.  for  the  whole  amount  of  the  said  A.  B.'s  de- 
mand, with  costs,  or  for  such  part  thereof  as  he,  in  person  or  by 
attorney,  may  be  willing  to  take  a  judgment  for.  Given  under 
ray  hand  &c. 


Process  to  commence  personal  actions.  7 

10.  Return  of  capias,  where  it  is  executed  and  the  hail  required  is 

not  given.     1  Rob.  Prac.  136. 

Executed  on  the  day  of upon  the  defendant,  who, 

in  consequence  of  not  giving  bail,  remains  in  custody. 

11.  Confession  of  judgment  in  the  office  hy  defendant  in  custody,  and 
he,  not  being  prayed  in  custody,  discharged  therefrom.  1  Rob. 
Prac.  137,  8.     Sess.  Acts  1839-40,  p.  46.  ch.  53.  <^  1. 

The  defendant  being  arrested  and  in  custody  of  the  sheriff  of 
this  county,  upon  the  writ  of  capias  ad  respondendum  issued  in 
this  cause,  acknowledges  the  plaintiff's  action  &c.  (as  in  No.  8, 
to  the  end  of  the  judgment.)  Whereupon,  it  appearing  that  the 
defendant  gave  to  the  plaintiff  (or,  it  appearing  that  the  plaintiff 
resides  out  of  this  county,  and  that  the  defendant  gave  to  his 
attorney  employed  in  this  suit)  notice  in  writing,  ten  days  pre- 
vious to  this  day,  of  the  time  at  which  he  meant  to  make  the 
said  confession,  and  the  defendant  not  being  prayed  in  custody 
by  the  plaintiff  or  his  attorney,  in  person  or  by  an  order  in 
writing,  the  said  defendant  is  therefore  now  discharged  out  of 
custody. 

12.  Cotfession  of  judgment  in  the  ofice  by  defendant  in  custody,  who 
is  thereupon  prayed  in  custody.  1  Rob.  Prac.  137,  8.  Sess. 
Acts  1839-40,  p.  46.  ch.  53.  <^  1. 

At  the  foot  of  the  judgment,  say — *'  And  the  plaintiff  (or,  the 
plaintiff's  attorney)  here  in  person,  prays  the  defendant  in  cus- 
tody." 

Or:  "And  the  plaintiff  (or,  the  plaintiff's  attorney)  by  an 
order  in  writing,  prays  the  defendant  in  custody." 

JVote.  The  statute  provides  that  "  if  the  defendant  shall  desire  to  take  the  oath  of 
insolvency,  in  order  to  discharge  himself  from  custody  in  any  such  suit  or  under 
any  such  judgment,  it  shall  be  lawful  for  him  to  do  so,  in  the  same  manner  as  is 
or  may  be  prescribed  by  law  in  other  cases."  By  the  prayer  in  custody  the  de- 
fendant stands  charged  in  execution,  and  he  can  then  give  notice  and  proceed  in 
other  respects  like  other  debtors  charged  in  execution. 

13.  Confession  of  judgment  in  court  by  defendant  in  custody.     1  Rob. 

Prac.  136,  7. 

The  defendant  being  in  custody  of  the  sheriff  of  this  county 
for  want  of  bail,  this  day  came  as  well  the  plaintiff  by  his  attor- 
ney, as  the  defendant  in  custody  as  aforesaid  in  his  proper  per- 
son, and  the  said  defendant  acknowledgeth  the  plaintiff's  action 


8  Process  to  commence  personal  actions. 

for  the  debt  and  interest  in  the  writ  {or,  if  there  he  a  declaration, 
in  the  declaration)  mentioned,  and  costs :  Therefore  it  is  consi- 
dered by  the  court  that  &c.  (as  in  No.  8,  to  the  end  of  the 
judgment.) 

Whereupon,  the  plaintiff  not  prajnng  the  defendant  in  execu- 
tion, it  is  ordered  that  the  said  defendant  be  discharged  out  of 
custody. 

Or:  Whereupon,  on  the  prayer  of  the  plaintiff,  the  said  de- 
fendant is  committed  in  execution  to  the  custody  of  the  sheriff 
of  this  county,  to  remain  in  jail  until  he  shall  have  satisfied  this 
judgment,  or  shall  be  otherwise  discharged  by  due  course  of 
law. 

14.  Return,  where  hail  is  given  before  the  return  day  of  the  writ  is 

past.     1  Rob.  Prac.  134,  5,  6. 

T  executed  this  writ  upon  the  defendant  on  the  day 

of ,  and  took  A.  B.  as  his  bail.     The  recognizance  of  the 

bail  is  returned  herewith. 

15.  Bail  being  given  in  term  time,  order  discharging  defendant. 

1  Rob.  Prac.  136. 

A  recognizance  of  E.  F.  as  special  bail  for  the  defendant 
being  filed,  it  is  ordered  that  the  defendant  be  discharged  from 
custody. 

Or: 

E.  F.  of  this  county  comes  into  court  and  undertakes  for  the 
defendant,  that  in  case  he  shall  be  cast  in  this  suit,  he  shall  pay 
and  satisfy  the  condemnation  of  the  court,  or  render  his  body  to 
prison  in  execution  for  the  same,  or  that  he  the  said  E.  F.  will 
do  it  for  him.  Whereupon  it  is  ordered  that  the  defendant  be 
discharged  from  custod}'. 

Or,  if  in  detinue : 

E.  F.  of  H.  county  comes  into  court  and  undertakes  for  the 
defendant,  that  in  case  he  shall  be  cast  in  this  suit,  he  the  said 
defendant  will  satisfy  the  condemnation  of  the  court,  either  by 
restoring  to  the  plaintiff  the  specific  property  which  he  may 
recover  in  the  said  suit,  and  paying  to  him  all  costs  and  damages 
which  he  may  recover  therein,  or  by  paying  to  the  plaintiff  the 
alternative  value  of  such  property,  with  the  costs  and  damages 
aforesaid,  or  will  render  his  body  to  prison  in  execution  for  the 
same,  or  that  he  the  said  E.  F.  will  do  it  for  him.  Whereupon 
it  is  ordered  &-c.  (as  before.) 


Process  to  commence  personal  actions.  9 

16.  Return,   where  bail  is  not  required   and  process   is   executed. 
1  Rob.  Prac.  133,  4,  6. 

If  the  capias  or  summons  be  executed  on  ihe  defendant  per- 
sonally, a  general  return  of  "  executed  on  the day  of " 

is  sufficient.  In  the  case  of  a  summons  against  a  privileged 
person,  if  it  cannot  be  executed  on  the  defendant  personally, 
another  mode  of  service  is  allowed.  The  sheriff  may  in  such 
case  return  as  follows  :  "  I  could  not  execute  this  summons  on  the 
defendant  personally,  but  left  a  copy  at  his  usual  place  of  abode, 
ten  days  before  the  return  day,  to  wit,  on  the day  of ." 

If  the  summons  be  against  an  incorporated  company,  the  re- 
turn may  be  as  follows  :  "  Executed  by  me,  on  the day 

of ,  in  my  county,  upon  A.  B.  who  resides  therein,  and  is 

the  president  of  the  incorporated  company  within  mentioned." 
Or  :  "  The  president  of  the  within  named  incorporated  company 

being  absent,  I  executed  this  summons  on  the day  of , 

in  my  county,  upon  C.  D.  who  resides  therein,  and  is  the  cashier 
{or,  treasurer)  of  the  said  company."  Or:  "  In  the  absence  of 
both  the  president  and  the  cashier  (or,  treasurer)  of  the  com- 
pany within  named,  I  executed  this  summons,  on  the day 

of ,  in  my  county,  upon  E.  F.  who  resides  therein,  and  is 

a  director  of  the  said  company." 

When  the  summons  is  like  No.  6.  against  a  bank  upon  a  con- 
troversy arising  with  a  branch,  the  return  will  be,  "  Executed 

by  me,  on  the day  of ,  in  my  county,  upon  A.  B. 

the  president  of  the  branch  bank  within  mentioned."  Or: 
"  The  president  of  the  branch  bank  within  mentioned  being 

absent,  I  executed  this  summons,  on  the day  of ,  in 

my  county,  upon  C.  D.  the  cashier  of  the  said  branch  bank." 

The  return  upon  a  summons  against  the  corporation  of  a  city, 
borough  or  town,  or  against  an  incorporated  college  or  academy, 
or  against  a  corporation  of  any  other  description,  will  be  go- 
verned by  the  nature  of  the  case,  conforming  as  near  as  may  be 
to  the  act  of  assembly. 

17.  Return  of  not  found.     1  Rob.  Prac.  138. 

I  went  to  the  dwelling  house  of  the  defendant,  and  not  find- 
ing him,  left  there  an  attested  copy  of  this  writ.  I  therefore 
return  that  the  said  defendant  is  not  found  in  my  bailiwick. 

18.  Return  of  no  inhabitant.     1  Rob.  Prac.  138. 

The  defendant  is  not  an  inhabitant  of  my  county,  but  is  a 
known  inhabitant  of  the  county  of  H. 
2 


10  Proceedings  at  rules. 


CHAPTER  11. 

PROCEEDINGS    AT    RULES. 


1.  Entry  where  action  abates  hy  the  return.     1  Rob.  Prac.  174. 

The  sheriff  having  made  return  that  the  defendant  is  not  an 
inhabitant  of  this  county,  it  is  ordered  that  this  suit  abate  and 
be  dismissed. 

2.  Award  of  alias  capias.     1  Rob.  Prac.  174. 

The  sheriff  having  made  return  that  the  defendant  is  not 
found  within  his  bailiwick  {or,  the  capias  issued  in  this  cause 
not  being  returned  executed)  on  the  motion  of  the  plaintiff  by 
his  attorney,  an  alias  capias  is  awarded  against  the  said  defen- 
dant, returnable  at  the  next  rules  {or,  on  the  first  day  of  the 
next  quarterly  session.) 

3.  Alias  writ.     1  Rob.  Prac.  174,  5. 

We  command  you,  as  at  another  time  we  have  commanded 
you,  that  you  take  &c. 

4.  Award  of  pluries  capias.     I.Rob.  Prac.  174,  5. 

The  sheriff  having  made  return  on  the  alias  writ  of  capias 
issued  in  this  cause,  that  the  defendant  is  not  found  within  his 
bailiwick  {or,  the  alias  writ  of  capias  issued  in  this  cause  not 
being  returned  executed)  on  the  motion  of  the  plaintiff  by  his 
attorney,  a  pluries  writ  of  capias  is  awarded  &c.  (as  in  No.  2.) 

5.  Pluries  writ.     1  Rob.  Prac.  174,  5. 

We  command  you,  as  often  heretofore  we  have  commanded 
you,  that  you  take  &c. 

6.  Award  of  testatum  capias.     1  Rob.  Prac.  175. 

The  sheriff  having  returned  on  the  writ  of  capias  to  answer 
in  this  action,  that  the  defendant  is  not  found  within  his  baili- 


Proceedings  at  rules.  11 

wick,  and  it  being  testified  tha{  the  defendant  has  gone  into  the 
county  (or,  corporation)  of  C.  and  therein  lies  hid  or  lurks,  on 
the  motion  of  the  plaintiff  by  his  attorney,  a  testatum  capias  is 
awarded  him  against  the  said  defendant,  returnable  &c.  (as  in 
No.  2.) 

7.   Writ  of  testatum  capias.     1  Rob.  Prac.  175. 

Whereas  we  lately  commanded  our  sheriff  of  H.  county,  that 
he  should  take  C.  D.  if  he  should  be  found  within  his  bailiwick, 
and  him  safely  keep,  so  that  he  might  have  his  body  before  the 
judge  of  our  circuit  superior  court  of  law  and  chancery  for  our 
said  county,  at  the  courthouse  thereof,  on  the  first  day  of  the 
then  next  term,  to  answer  A.  B.  of  a  plea  of  debt  for  $200, 
damage  $20  ;  and  our  said  sheriff  at  that  day  made  return  that 
the  said  C.  D.  was  not  found  within  his  bailiwick  :  Whereupon, 
on  behalf  of  the  said  A.  B.  it  is  sufficiently  testified  to  the  judge 
of  our  said  court,  that  the  said  C.  D.  has  gone  into  your  county, 
and  lies  hid  and  lurks  therein :  Therefore  we  command  you 
that  you  take  the  said  C.  D.  if  he  be  found  within  your  baili- 
wick, and  him  safely  keep,  so  that  you  have  his  body  before 
the  judge  of  our  said  court,  at  the  courthouse  aforesaid,  on  the 
first  day  of  the  next  term,  to  answer  the  said  A.  B.  of  the  plea 
aforesaid.     And  have  then  there  this  writ.     Witness  &c. 

8.  Attachment  awarded  to  force  an  appearance.     1  Rob.  Prac. 

175,  6. 

The  sheriff  having  &c.  (as  in  No.  6.  to — "  within  his  baili- 
wick") and  the  said  defendant  not  appearing,  on  the  motion  of 
the  plaintiff  by  his  attorney,  an  attachment  is  awarded  him 
against  the  estate  of  the  defendant,  for  $  200,  the  debt  in  the 
said  writ  mentioned,  and  the  costs,  returnable  &c.  (as  in 
No.  2.) 

9.  Process  of  attachment.     1  Rob.  Prac.  175,  6. 

Whereas  &c.  (setting  forth  capias  and  return,  as  in  No.  7.) 
Whereupon,  on  the  motion  of  the  said  A.  B.  an  attachment  has 
been  awarded  against  the  estate  of  the  said  C.  D.  to  force  an 
appearance :  Therefore  we  command  you  that  you  attach  so 
much  of  the  goods  and  chattels  of  the  said  C.  D.  as  will  be  of 
value  sufficient  to  satisfy  and  pay  the  said  sum  of  $200  and 
costs,  and  that  you  secure  the  same  in  your  hands,  or  otherwise 
provide  that  the  same  may  be  forthcoming  and  liable  for  pay- 


12  Proceedings  at  rules. 

rnent  thereof,  as  the  judge  of  our  said  court,  on  the  first  day  of 
the  next  term,  shall  in  that  part  consider.  And  have  then 
there  &c. 

10.  Sheriff  h  return  upon  attachment.     1  Rob.  Prac.  175,  6. 

I  have  attached  the  following  goods  of  the  defendant,  to  wit: 
(here  specify  them.)     The  goods  attached  remain  in  my  hands. 

Or :  I  executed  this  attachment  upon  the  following  goods  of 
the  defendant,  to  wit :  (here  specify  them)  and  the  defendant 
replevied  the  same  by  giving  A.  B.  as  his  special  bail,  whose 
recognizance  I  took  and  herewith  return. 

11.  Proclamation  awarded.     1  Rob.  Prac.  175. 

mhe  pluries  capias  directed  to  the  sheriff  of  this  county  being 
returned  that  the  defendant  is  not  found,  on  the  motion  of  the 
plaintiff  by  his  attorney,  it  is  ordered  that  a  proclamation  issue, 
warning  the  defendant  to  appear  here  on  the  first  day  of  the 
next  term,  or  that  judgment  will  be  rendered  against  him. 
And  it  is  further  ordered  that  the  said  proclamation  be  published 
on  three  successive  court  days,  at  the  door  of  the  courthouse  of 
this  county,  and  also  three  times  in  the  Richmond  Enquirer. 

12.  Process  of  proclamation.     1  Rob.  Prac.  175. 

We  command  you  that  you  cause  proclamation  to  be  made 
according  to  law,  warning  /.  M.  to  appear  before  the  judge  of 
our  circuit  superior  court  of  law.  and  chancery  for  the  county  of 
H.  at  the  courthouse,  on  the  first  day  of  the  next  term,  to  an- 
swer J.  S.  of  a  plea  of  trespass  on  the  case,  damage  $  150';  or 
that,  if  he  doth  not  so  appear,  judgment  will  be  rendered 
against  him  in  the  said  suit,  now  in  our  said  court  depending 
and  undetermined.     And  have  then  &c. 

13.  Sheriff  ^s  return  upon  process  of  proclamation.     1  Rob.  Prac. 

175. 

T  have  warned  the  defendant  to  appear  on  the  day  within 
named,  or  that  judgment  would  be  rendered  against  him.  This 
warning  was  given  as  the  law  directs,  by  publishing  the  procla- 
mation on  three  successive  court  days,  at  the  door  of  the  court- 
house of  my  county,  and  also  three  times  in  a  public  newspaper, 
to  wit,  the  Richmond  Enquirer.  The  cost  of  the  publication  in 
the  newspaper,  being  $ ,  has  been  charged  to  the  plaintiff. 


Proceedings  at  rules.  13 

14.   Conditional  judgment  in  a  suit  commenced  by  capias.     1  Rob. 

Prac.  169. 

This  day  came  the  plaintiff  by  his  attorney,  and  filed  his 
declaration.  And  the  defendant  being  arrested  {or,  having 
given  special  bail)  and  not  appearing,  on  the  motion  of  the 
plaintiff,  it  is  ordered  that  judgment  be  entered  for  the  said 
plaintiff  against  the  defendant  for  &c.*  unless  the  defendant 
shall  appear  at  the  next  rules  and  answer  the  plaintiff's  action. 

*  If  in  debt — "  for  what  shall  appear  to  be  justly  due  to  the 
plaintiff,  and  also"  (if  the  nature  of  the  case  make  it  proper) 
'*  for  such  damages  as  the  plaintiff  hath  sustained  by  occasion 
of  the  detention  of  his  debt. 

If  in  detinue — "  for  the  slave  in  the  declaration  mentioned,  if 
he  may  be  had,  or  the  price  of  him  if  he  may  not  be  had,  to- 
gether with  damages  for  detaining  him." 

If  the  action  sound  in  damages — "  for  what  damages  the  plain- 
tiff ought  to  recover." 

If  the  action  be  for  debt  or  damages,  and  against  an  executor  or 
administrator,  insert — "  to  be  levied  of  the  goods  and  chattels  of 
the  decedent  in  the  hands  of  the  defendant  to  be  administered," 
before  the  words  "  unless  the  defendant  shall  appear"  &c. 

If  the  defendant  be  sued  in  his  own  right  and  be  in  custody,  after 
the  words  "  the  defendant  being  arrested,"  add — '*  and  in  cus- 
tody of  the  sheriff  of  this  county." 

15.  Conditional  judgment  in  a  suit  commenced  by  summons.    1  Rob. 

Prac.  170. 

In  a  suit  against  a  'privileged  person.  This  day  came  the 
.plaintiff  by  his  attorney,  and  filed  his  declaration.  And  the 
defendant  being  summoned  and  not  appearing,  on  the  motion 
&c.  {or,  This  day  came  &c.  And  a  copy  of  the  summons  issued 
in  this  cause  having  been  left  at  the  defendant's  usual  place  of 
abode,  ten  days  before  the  return  day,  and  the  said  defendant 
not  appearing,  on  the  motion  &c.) 

In  a  suit  against  a  corporation.  This  day  came  &c.  And  the 
summons  being  duly  executed,  and  the  defendants  not  appear- 
ing, on  the  motion  &c. 

16.  Conditional  judgment  where  officer  is  Tcept  off  by  force  of  arms. 

1  Rob.  Prac.  175. 

This  day  came  &c.  And  the  sheriff  having  made  return  on 
the  capias  to  him  directed,  that  he  has  been  kept  off  by  force  of 
arms,  on  the  motion  &c. 


14  Proceedings  at  rules. 

17.  Conditional  judgment  after  proclamation.     1  Rob.  Prac.  175. 

This  day  came  &c.  And  it  appearing  that  the  proclamation 
in  this  cause  has  been  published  on  three  successive  court  days, 
at  the  door  of  the  courthouse  of  the  county  to  which  the  last 
process  was  directed,  and  also  three  times  in  a  public  newspa- 
per, and  the  defendant  failing  to  appear  pursuant  to  such  pro- 
clamation, on  the  motion  &c. 

18.  Conditional  judgment  after  attachment.     1  Rob.  Prac.  176,  7. 

This  day  came  &c.  And  the  sheriff  having  executed  the 
attachment  issued  in  this  cause,  upon  goods  of  the  defendant, 
and  the  said  defendant  having  replevied  the  same  by  giving 
special  bail,  on  the  motion  &c. 

Or:  This  day  came  &c.  And  the  sheriff  having  executed 
the  attachment  issued  in  this  cause,  upon  goods  of  the  defen- 
dant, and  the  said  defendant  failing  to  appear  and  replevy  the 
same,  on  the  motion  of  the  plaintiff,  it  is  ordered  that  judgment 
be  entered  &c. 

19.   Conditional  judgment  confirmed.     1  Rob.  Prac.  169.  170. 

The  defendant  still  failing  to  appear  {or,  the  defendant  ap- 
pearing, but  not  pleading  any  matter  which  answers  the  plain- 
tiff's action)  on  the  motion  of  the  plaintiff  by  his  attorney,  it  is 
ordered  that  the  conditional  judgment  entered  in  this  cause  at 
the  last  rules  stand  confirmed,  and  {if  the  case  be  one  in  which  a 
writ  of  enquiry  is  proper)  that  the  plaintiff's  damages  be  ascer- 
tained by  a  jury  at  the  next  term. 

If  the  action  be  detinue,  insert—'*  price  and  damages,"  in  lieu 
of  the  words  "  plaintiff's  damages." 

20.  Rule  to  declare.     1  Rob.  Prac.  140. 

This  day  came  the  defendant  by  his  attorney,  and  a  day  is 
thereupon  given  the  plaintiff  until  the  next  rules,  to  file  his 
declaration  ;  and  the  same  day  is  given  the  said  defendant 
there  &c. 

21.  Dismission  for  ivant  of  declaration.     1  Rob.  Prac.  140.  262. 

The  plaintiff  having  been  ruled  to  file  his  declaration,  and 
failing  so  to  do,  on  the  motion  of  the  defendant  by  his  attorney, 
it  is  ordered  that  the  said  plaintiff  be  nonsuited,  and  pay  to  the 
defendant  five  dollars  according  to  law,  besides  the  costs  by 
the  defendant  about  his  defence  expended. 


Proceedivors  at  rules.  16 


o 


22.  Dismission  for  want  of  declaration  set  aside  in  court.     1  Rob. 

Prac.  140. 

On  the  motion  of  the  plaintiff  by  his  attorney,  who  filed  his 
declaration,  it  is  ordered  that  the  nonsuit  entered  at  the  rules 
for  want  of  a  declaration  be  set  aside,  and  that  the  cause  be 
reinstated  upon  the  rule  docket. 

23.  Flaintiffh  next  friend  being   dead,   another  admitted   to  sue. 

1  Rob.  Prac.  123. 

S.  M.  the  plaintiff's  father  and  next  friend  having  died,  B. 
G.  M.  a  brother  of  the  plaintiff  is  admitted  to  sue  for  him  as 
his  next  friend. 

24.  Declaration  filed  against  an  infant.     1  Rob.  Prac.  172. 

This  day  came  the  plaintiff  by  his  attorney,  and  filed  his  de- 
claration. And  the  said  plaintiff  suggesting  that  the  defendant 
is  an  infant,  the  cause  is  continued. 

25.  Guardian  assigned  by  the  court  to  defend  an  infant.     1  Rob. 

Prac.  172. 

On  the  motion  of  the  plaintiffs  by  their  attorney,  A.  B.  is 
appointed  by  the  court  guardian  ad  litem  to  the  infant  defendant, 
to  defend  him  in  this  suit.  And  it  is  ordered  that  notice  be 
given  the  said  guardian  of  his  appointment,  by  serving  upon 
him  a  copy  of  this  order. 

26.  Appearance  of  infant  defendant  by  guardian.    1  Rob.  Prac.  173. 
This  day  came  the  infant  defendant  by  his  guardian  &c. 

27.  After  infant  attains  his  age,  appearance  by  attorney.     1  Rob. 

Prac.  173. 

The  defendant  C  D.  having  attained  his  full  age,  this  day 
appeared  by  attorney  &c. 

Or:  The  plaintiff,  having  attained  his  full  age,  this  day  came 
as  well  by  his  attorney,  as  the  defendant  by  his  attorney,  and 
thereupon  &c. 

28.  Flea  to  the  jurisdiction.     1  Rob.  Prac.  19.  20.  and  160.* 

In  the  circuit  superior  court  of  law  and  chancery  for  the 
county  of  H.     August  rules  1837. 


16  Proceedings  at  rules.  ;- 

C.  D.  ads  A.  B.  And  the  said  C.  D.  in  liis  own  proper  per- 
sont  comes  and  says,  that  this  court  ought  not  to  have  or  take 
further  cognizance  of  the  action  aforesaid,  because  he  says,  that 
at  the  time  the  writ  o{  capias  ad  respondendum  was  issued  against 
him  in  the  said  action,  he  resided  in  the  county  of  C.  and  has 
ever  since  resided  in  the  said  county  of  C.  and  a  non  est  inventus 
has  not  been  returnedl  in  his  said  county  upon  a  capias  issued 
against  him  for  the  same  cause  of  action,  but,  without  any  such 
return,  the  said  writ  of  capias  ad  respondendum  from  this  court 
was  issued  against  him  in  the  county  of  fl.  being  a  county  other 
than  that  in  which  he  resided  as  aforesaid  at  the  time  it  was 
issued,  and  other  than  that  in  which  he  still  resides  as  aforesaid, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. And  this  the  said  C.  D.  is  ready  to  verify.  Where- 
fore he  prays  judgment"^  whether  this  court  can  or  will  take 
further  cognizance  of  the  action  aforesaid.  C.  D. 

C.  D.  the  defendant  in  the  cause  above  mentioned  maketh 
oath  and  saith,  that  the  plea  above  written  is  true  in  substance 
and  fact.  C.  D. 

Sworn  to  this day  of  — — ,  before  me,  a  justice  of  the 

peace  for  the  county  of  H.  E.  F. 

*  The  utmost  strictness  is  required  in  these  pleas,  and  a  general  demurrer  to 
one  of  them  has  all  the  effect  of  a  special  demurrer.  Tucker,  P.  in  Hortons  4'C. 
V.  Townes,  6  Leigh  58. 

t  The  plea  is  bad  if  it  be  pleaded  by  attorney,  instead  of  in  person.     Ibid. 

t  Concerning  the  pleading  of  exceptions  and  provisoes  in  statutes,  see  a  well 
written  article  by  Tlieron  Metcalf  esq.  in  the  American  Jurist,  vol.  8.  p.  233. 

§  In  Hortons  S^c.  v.  Townes,  the  plea  prayed  judgment  of  the  writ  and  decla- 
ration, and  that  the  same  might  be  quashed.  Tucker,  P.  said,  the  plea  "  ought  to 
conclude  with  a  prayer  si  curia  cognoscere  velit,  or  respondere  non  debet,  and  not 
quod  billa  cassetur." 

29.  Flea  in  abatement  to  the  person  of  the  plaintiff,  that  he  is  an 
alien  enemy.     Clarke  v.  Morey,  10  Johns.  69. 

In  Bagwell  v.  Babe,  1  Rand.  272.  a  plea  of  alien  enemy  was 
filed.  It  alleged  that  the  plaintiff,  at  the  time  of  issuing  the 
writ,  was  a  subject  of  the  king  of  Great  Britain,  then  waging 
and  carrying  on  war  against  this  slate  and  the  citizens  thereof. 
The  defendant  demurred  to  the  plea;  and  the  court  of  appeals 
was  of  opinion  that  it  did  not  negative  or  affirm  all  the  facts 
that  were  necessary.  It  did  not  negative  the  license  of  the 
plaintiff  to  remain  in  the  country  by  virtue  of  the  act  of  con- 
gress entitled  "an  act  respecting  alien  enemies;"  nor  did  it 
affirm  that  he  had  been  ordered  off  by  the  executive  of  the 
United  States,  in  pursuance  of  that  act.  Until  such  order,  the 
act  gave  permission  to  the  alien  to  remain,  though  his  sovereign 
was  at  war  with  us. 


Proceedings  at  rules.  17 

30.  Plea  in  abatement,  that  the  jplaintiffs,  suing  as  husband  and 
wife,  never  were  married. 

If  a  scire  facias  by  husband  and  wife,  upon  a  judgment  ob- 
tained b}^  the  wife  dum  sola,  suggests  a  marriage  after  the  judg- 
ment and  before  the  emanation  of  the  urit,  and  the  plea  is  that  the 
plaintiffs  were  not  married  at  the  time  of  the  emanation  of  the 
urit,  such  plea  will  be  bad  on  demurrer,  because  it  does  not 
deny  that  there  had  been  a  marriage,  but  merely  alleges  that 
such  marriage  did  not  continue  at  the  date  of  the  writ.  It  does 
not  therefore  deny  the  facts  suggested  in  the  writ.  Neither  does 
it  allege,  in  a  sufficient  manner,  any  fact  to  avoid  their  effect. 
For  if  there  was  a  marriage  after  the  judgment,  as  suggested  in 
the  scire  facias,  and  then  a  divorce  before  the  emanation  of  the 
writ,  such  divorce  should  be  particularly  set  forth  in  the  plea. 
Buck  V.  Fouchee  arid  wife,  1  Leigh  64. 

31.  Plea  in  abatemetit,  that  plaintiff  is  a  fictitious  person. 

Doe  V.  Penfield,  19  Johns.  308.  was  an  action  of  assumpsit 
brought  in  New  York,  to  recover  costs  adjudged  against  the  defen- 
dant in  an  action  of  ejectment  in  Upper  Canada.  The  declara- 
tion stated  a  judgment  of  the  court  of  king's  bench  in  Upper 
Ca?iada  against  the  defendant,  for  <£  315.  17.  7.  for  damages 
which  the  plaintiff" had  sustained  as  well  by  reason  of  a  certain 
action  of  trespass  and  ejectment,  as  for  his  costs  &c.  The 
defendant  pleaded  in  abatement,  that  there  is  not,  nor  at  the 
time  of  filing  the  plaintiff's  declaration  was  there,  any  such 
person  in  being  as  John  Doe,  nor  was  there  any  such  person  as 
John  Doe  in  existence,  as  the  declaration  supposed  ;  with  a  veri- 
fication. Wherefore  the  plea  pra3''ed  judgment  of  the  declara- 
tion, that  it  be  quashed  &c.  The  plaintiff"  replied,  that  the 
action  of  ejectment  was  brought,  as  set  forth  in  the  declaration, 
in  the  name  of  John  Doe,  who  is  a  fictitious  person,  and  nomi- 
nal plaintiflT,  and  that  the  action  was  brought,  and  the  judgment 
rendered,  for  the  benefit  and  at  the  instance  of  one  William, 
Dickson,  according  to  the  practice  and  usage  of  the  court  of 
king's  bench  in  Upper  Canada,  as  authorized  by  the  laws  of  that 
province;  that  the  defendant  appeared  in  the  suit,  and  pleaded 
not  guilty  to  the, declaration  filed  in  the  cause;  and  judgment 
was  rendered  in  the  suit  against  the  defendant  for  the  damages 
and  costs,  according  to  the  laws  of  that  province.  There  was 
a  demurrer  to  this  replication;  and  the  supreme  court  of  iVet^j 
York  sustained  the  demurrer,  and  gave  judgment  in  favour  of 
the  defendant.  The  opinion  of  the  court,  delivered  by  Piatt,  J. 
concluded  with  these  words :  "  If  Dickson  have  any  remedy 
3 


18  Proceedings  at  rules. 

here*  for  those  costs,  it  must,  I  think,  be  a  special  action  on  the 
case  in  his  own  name." 

*  In  JVew  York,  the  use  of  the  names  of  any  other  than  the  real  claimants  in 
ejectment  is  abolished.     Ely  4'C.  v.  Ballantinc,  7  Wend.  470. 

32.  Plea  in  abatement  to  the  perso7i  of  the  plaintiff,   that  he  was 

dead  when  the  writ  issued.     1  Rob.  Prac.  162,  3. 

In  &c.  (as  in  No.  28.)  C.  D.  ads  A.  D. 

And  the  said  C.  D.  in  his  own  proper  person  comes  and  de- 
fends the  wrong  and  injury,  and  says,  that  the  said  A.  B.  at 
whose  suit  the  writ  of  capias  ad  respondendum  in  this  action  is 
supposed  to  have  been  issued  against  him  the  said  C.  V.  at  the 
time  the  said  writ  was  issued,  and  long  before,  was  dead,  and 
that  there  is  not,  nor  at  the  time  of  the  issuing  of  the  said  writ 
against  him  the  said  C.  D.  was  there,  any  such  person  in  being 
as  the  said  A.  B.  as  in  and  by  the  said  writ  is  supposed.  And 
this  the  said  C.  D.  is  ready  to  verify.  Wherefore  he  prays 
judgment  of  the  said  writ,  and  that  the  same  may  be  quashed  &c. 

33.  Plea  in  abatement  to  the  person  of  the  defendant,  that  the  con- 
tract was  made  by  him  and  his  partner  jointly,  and  not  by  the 
defendant  separately.     1  Rob.  Prac.  163,  4. 

And  the  said  C.  D.  &c.  (as  last)  and  says,  that  the  plaintiff's 
cause  of  action,  if  any  he  has,  is  jointly  against  him  the  said 
C.  D.  and  one  E.  F.  with  whom  the  said  C.  D.  has  been  car- 
rying on  trade  and  business  in  partnership,  and  is  not  against 
the  said  C.  D.  separately  and  solely  ;  to  wit,  at  the  county  of  iif. 
aforesaid ;  and  that  the  said  E.  F.  at  the  time  of  the  issuing  of 
the  writ  of  capias  ad  respondendum  in  this  action,  was,  and  still 
is,  living;  to  wit,  at  the  county  of  H.  aforesaid.  And  this  &c. 
(as  last.) 

The  second  section  of  the  act  passed  April  3.  1838,  amend- 
ing the  statute  of  limitations,  provides  "  that  if  any  defendant 
or  defendants  in  any  action  on  any  simple  contract  shall  plead 
any  matter  in  abatement,  to  the  effect  that  any  other  person  or 
persons  ought  to  be  jointly  sued,  and  issue  be  joined  on  such 
plea,  and  it  shall  appear  at  the  trial  that  the  action  could  not, 
by  reason  of  the  said  recited  act,  or  of  this  act,  or  of  either  of 
them,  be  maintained  against  the  other  person  or  persons  named 
in  such  plea,  or  any  of  them,  the  issue  joined  on  such  plea  shall 
be  found  against  the  party  pleading  the  same."  Sess.  Acts 
1838,  p.  74.  ch.  95.  <^  2. 


Proceedings  at  rules.  19 

34.  Plea  in  abatement  for  variance  between  the  writ  and  declaration. 
comes  and  defends  the  wrong  and  injur}^  and   prays 


oyer  of  the  writ  of  capias  ad  respondendum  issued  in  this  action, 
and  of  the  endorsement  and  return  thereon,  and  the  same  are 
read  to  him  in  these  words,  to  wit:  '•  The  commonwealth"  &c. 
(here  insert  the  writ,  endorsement  and  return)  which  being  read 
and  heard,  the  said  C.  D.  prays  judgment  of  the  writ  aforesaid, 
and  also  of  the  declaration  thereon  founded,  because  he  says 
that  there  is  a  variance  between  the  said  writ  and  declaration 
in  this,  to  wit,  that  in  and  by  the  said  writ  the  said  C.  D.  is  re- 
quired to  answer  the  said  A.  B.  of  a  plea  of  debt  for  S  100  with 

interest  thereon  from  the day  of ,  and  nothing  is 

claimed  in  the  said  writ  for  charges  of  protest,  whereas,  in  the 
declaration  aforesaid  founded  upon  the  said  writ,  the  said  A.  B. 
complains  of  the  said  C.  D.  of  a  plea  that  he  render  to  the  said 
A.  B.  the  said  8  100  with  interest  thereon  as  aforesaid,  and  also 
$  3.25  cents  for  charges  of  protest.  Wherefore,  because  there 
is  such  variance  between  the  said  writ  and  the  said  declaration, 
the  said  C.  D.  prays  judgment  of  the  writ  and  declaration 
aforesaid,  and  that  the  same  may  be  quashed. 

35.  Plea  in  abatement  by  a  corporation  for  intrinsic  matter.*     1 
Rob.  Prac.  162. 

In  &c.  (as  in  No.  28.)     The company  ads  A.  B. 

And  T//e company  by  their  attorneyt  come  and  defend 

the  wrong  and  injury,  and  crave  oyer  of  the  summons  issued  in 
this  action,  and  of  the  endorsement  and  return  thereon,  and  the 
same  are  read  to  them  in  these  words,  to  wit :  "  The  common- 
wealth" &c.  (here  insert  the  summons,  endorsement  and  return) 

which  being  read  and  heard.  The  company  say  they  ought 

not  to  be  compelled  to  answer  the  said  action,  because  they  say 
that  the  said  summons  so  issued  from  the  court  of  the  said  coun- 
ty of  C.  was  not  directed  to  and  served  by  the  sheriff  or  other 
proper  officer  of  the  said  county  of  C.  in  like  manner  as  other 
original  process  from  the  said  court  is  directed  and  served,  but 
the  said  summons  was  directed  to  and  served   by  the  sheriff  of 

the  county  of  H.     And  this   The company  are  ready  to 

verify.  Wherefore  they  pray  judgment  of  the  said  summons, 
and  that  the  same  may  be  quashed. 

*  An  action  may  be  instituted  against  a  corporation  in  the 
county  or  corporation  where  the  same  is  located,  although  the 
cause  of  action  may  have  arisen  elsewhere.  1  R.  C.  1819,  p. 
472.  ch.  122.     And  under  the  statute  of  March  17.  1837,  an 


20  Proceedings  at  rules. 

action  may  likewise  be  instituted  against  a  corporation  in  the 
county  or  corporation  where  the  cause  of  action  arose.  Sess. 
Acts  1836-7,  p.  44.  ch.  68.  But  under  the  statute  last  cited, 
the  summons  is  "  subject  to  the  same  rules  and  regulations  as 
other  original  process."  And  original  process  is  never  directed 
to  the  officer  of  any  other  county  or  corporation  than  that  in 
which  the  suit  is  brought,  unless  it  be  expressly  authorized. 
Whether  or  no  this  plea  would  be  good  on  demurrer,  depends 
on  the  enquiry  whether  the  statute  is  to  be  construed  as  autho- 
rizing original  process  against  a  corporation  to  be  issued  from 
one  county  or  corporation  directed  to  the  officer  of  another. 
On  that  question  it  is  not  intended  here  to  express  any  opinion. 

+  A  plea  by  a  corporation  aggregate,  which  is  incapable  of 
a  personal  appearance,  must  purport  to  be  by  attorney.  1 
Chitty's  PI.  469. 

36.  Plea  iji  abatement  by  a  corporation  for  extrinsic  matter.    1  Rob. 

Prac.  162.     Sess.  Acts  1836-7,  p.  44.  ch.  68. 

In  &c.  (as  in  No.  28.)      J'he company  ads  R.  Sf  R. 

And  The company,  upon  whose  president  the  process 

in  this  cause  was  executed,  come  by  their  attorney,  and  crave 
oyer  of  the  said  process  and  of  the  endorsement  and  return 
thereon,  and  the  same  are  read  to  them  in  these  words,  to  wit : 
"  The  commonwealth"  &c.  (here  insert  the  summons,  endorse- 
ment and  return)  which  being  read  and  heard,  The com- 

pany  say  they  ought  not  to  be  compelled  to  answer  the  said 
action,  because  they  say  that  the  president  of  the  said  company, 
at  the  time  of  the  service  of  the  said  process  upon  him,  usually 
resided  in  the  corporation  of  Richmond,  to  wit,  in  the  county  of 
H.  and  the  said  process  was  not  served  by  the  sheriff  or  other 
proper  officer  of  said  county  of  H.  or  corporation  of  Richmond, 
but  the  same  was  served  by  the  sheriff  of  a  county  in  which  the 
said  president  does  not  reside,  to  wit,  the  sheriff  of  the  county 
of  C.  in  which  last  mentioned  county  the  said  president  hap- 
pened to  be  at  the  time  of  such  service.     And  this  The 

company  are  ready  to  verify.     Wherefore  &c.  (as  last.) 

37.  Entry  of  declaration,  defendant's  appearance,  and  rule  to  plead. 

1  Rob.  Prac.  165. 

This  day  came  the  parties  by  their  attorneys,  and  the  plain- 
tiff having  filed  his  declaration,  a  day  is  thereupon  given  the 
defendant  until  the  next  rules,  to  plead  to  the  said  declaration ; 
and  the  same  day  is  given  the  said  defendant  there  &c. 


Proccedins^s  at  rules.  21 


C3 


38.  Entry   at    succeeding   rule   day,   if  defendant  fail   to   plead, 

1  Rob.  Prac.  165. 

This  clay  came  the  plainlifF  by  his  atlorney,  and  the  defen- 
dant saiih  nothing  in  bar  or  preclusion  of  the  plaintiff's  action, 
whereby  the  plaintiff  therein  against  him  remaineth  altogether 
undefended  :  Therefore  it  is  ordered  that  judgment  be  entered 
for  the  plaintiff  against  the  defendant,  for  &c. 

{If  in  debt.) for  the  debt  and  interest  in  the  declaration  men- 
tioned, and  the  costs.     Or, for  the  debt  in  the  declaration 

mentioned,  with  interest  thereon  from  the day  of 

till  paid,  and  the  costs.  Or, for  the  debt  in  the  declara- 
tion mentioned,  and  the  costs  ;  to  be  discharged  by  the  payment 

of  $ ,  with  interest  thereon  from  the day  of 

till  paid,  and  the  costs.     Or, for  the  debt,  interest  and 

charges  of  protest  in  the  declaration  mentioned,  and  also  for 
the  damages  which  the  plaintiff  has  sustained  by  occasion  of 
the  detention  of  the  said  debt,  and  the  costs ;  wliich  damages 
are  to  be  enquired  of  by  a  jury  at  the  next  term. 

{If  in  assumpsit.) for  the  damages  which  the  plaintiff  has 

sustained  by  occasion  of  the  defendant's  nonperformance  of  the 
promises  and  assumptions  in  the  declaration  mentioned,  and  the 
costs ;  which  damages  are  to  be  enquired  of  by  a  jury  at  the 
next  term. 

(If  in  tresjjass,  assault  and  battery.) for  the  damages  which 

&c.  by  occasion  of  the  trespass,  assault  and  battery  in  the  de- 
claration mentioned,  and  the  costs;  which  damages  are  to 
be  &c. 

{In  case  for  slander.) for  the  damages  &c.  by  occasion 

of  the  defendant's  speaking  the  words  in  the  declaration  men- 
tioned, and  the  costs ;  which  damages  &c. 

{In  detinue.) for  the  slave  in  the  declaration  mentioned, 

if  he  may  be  had,  or  the  price  of  him,  if  he  may  not  be  had, 
together  with  damages  for  detaining  him. 

If  the  action  be  for  debt  or  damages,  and  against  an  executor  or 
administrator,  introduce  the  words  "  to  be  levied  of  the  goods 
and  chattels  of  the  decedent  in  the  hands  of  the  defendant  to 
be  administered  ;"  and  if  there  be  a  writ  of  enquiry,  then,  in- 
stead of  "  which  damages  are  to  be,"  say,  *'  and  that  the  said 
damages  be"  &c. 

39.  Entry  of  declaration,  defendant'' s  appearance,  oyer  of  icrit,  pica 
in  abatement,  and  rule  to  reply.     1  Rob.  Prac.  158  to  164. 

This  day  came  the  plaintiff  by  his  attorney,  and  filed  his 
declaration  against  the  defendant :  Whereupon  came  also  the 


20  Proceedings  at  7'ules. 


to' 


defendant  by  his  attorney,  and  prayed  oyer  of  the  writ  of 
capias  ad  respondendum  issued  in  this  cause,  which  being  read  to 
him,  the  said  defendant  filed  a  plea  to  the  jurisdiction  {or,  a 
plea  in  suspension — or,  a  plea  in  abatement)  and  a  day  is  there- 
upon given  the  plaintiff  until  the  next  rules,  to  reply  to  the  said 
plea;  and  the  same  day  is  given  the  said  defendant  there  &c. 

40.  Entry  at  succeeding  rule  day,  if  plaintiff  fail  to  reply.    1  Rob. 

Prac.  165.  262. 

The  plaintiff  having  been  ruled  to  reply  to  the  defendant's 
plea,  and  failing  so  to  do,  on  the  motion  of  the  defendant  by 
his  attorney,  it  is  ordered  that  the  said  plaintiff  be  nonsuited, 
and  pay  to  the  defendant  five  dollars  according  to  law,  besides 
the  costs  by  the  defendant  about  his  defence  expended. 

41.  Demurrer  to  plea  to  the  jurisdiction. 

In  &c.  A.  B.  V.  C.  D.  And  the  said  A.  B.  as  to  the  said 
plea  of  the  said  C.  D.  by  him  above  pleaded,  saith,  that  the 
said  plea  and  the  matters  therein  contained,  in  manner  and 
form  as  the  same  are  therein  pleaded  and  set  forth,  are  not  suf- 
ficient in  law  to  preclude  this  court  from  taking  cognizance  of  the 
action  aforesaid,  and  that  the  said  A.  B.  is  not  bound  by  the  law 
of  the  land  to  answer  the  sarpe.  And  this  he  is  ready  to  verif3% 
Wherefore,  for  want  of  a  sufiicient  plea  in  this  behalf,  the  said 
A.  B.  prays  judgment  &c.  and  that  the  said  C.  D.  may  answer 
further. 

42.  Demurrer  to  plea  in  abatement. 

Like  the  last,  inserting,  in  lieu  of  the  words  in  italics,  these 
words :  "  to  quash  the  writ  aforesaid  of  him  the  said  A.  5."  or 
such  other  words  as  may  be  adapted  to  the  prayer  of  judgment 
in  the  plea  in  abatement.  In  the  conclusion,  the  words  "  and 
that  his  writ  aforesaid  may  be  adjudged  good,"  will  be  intro- 
duced before  the  words  "  and  that  the  said  C.  D.  may  answer 
further." 

43.  Replication  to  plea   to  the  jurisdiction.     1   Rob.   Prac.    19. 

20.  160. 

A.  B.  v.  C.  D.  And  the  said  A.  B.  saith,  that  notwithstand- 
ing any  thing  by  the  said  C.  D.  in  his  said  plea  alleged,  tliis 
court  ought  not  to  be  precluded  from  taking  cognizance  of  the 
action  aforesaid,  because  he  says,  that  G.  H.  and  the  said  C. 


Proceedings  at  rules.  23 

D.  were  and  are,  by  bond,  jointly  {or^  jointly  and  severally) 
bound  for  the  payment  of  money,  and  the  said  G.  H.  when 
the  said  writ  issued  from  this  court,  resided  in  the  said  county 
of  H.  and  the  said  G.  H.  and  C.  D.  have  been  prosecuted 
in  the  said  county  of  H.  in  this  action,  jointly  upon  the  said 
bond,  and  the  said  writ  so  issued  from  this  court  was  served 
on  the  said  C.  D.  in  the  said  county  of  H.  he  being  found 
therein.  And  this  the  said  A.  B.  is  ready  to  verify.  Where- 
fore he  prays  judgment,  and  that  the  said  C.  D.  may  answer 
to  the  said  declaration  of  him  the  said  A.  B. 

44.  Another  replication. 

because  he  says,  that  the  cause  of  the  said  action  arose 


in  the  said  county  of  H.  wherein  the  said  writ  was  issued 
against  the  said  C.  D.  And  this  the  said  A.  B.  is  ready  to 
verify.     Wherefore  &c.  (as  last.) 

45.  Another. 

because  he  says,  that  the  said  C.  D.  hath  no  fixed  or 


known  residence  in  any  county  or  corporation  within  this  com- 
monwealth, and  he  was  found  in  the  said  county  of  H.  and  the 
said  writ  was  issued  against  and  served  upon  him  in  that  coun- 
t}'.     And  this  &c.  (as  before.) 

46.  Entry  of  demurrer  to  plea,  and  joinder.     1  Rob.  Prac.  165. 

The  plaintiff  by  bis  attorney  this  day  filed  a  demurrer  to  the 
defendant's  plea,  and  the  defendant  joined  in  the  said  demurrer. 

47.  Entry  of  replication  to  plea,  and  rule  to  rejoin.     1  Rob.  Prac. 

165. 

The  plaintiff  by  his  attorney  this  day  filed  his  replication  to 
the  defendant's  plea,  and  a  day  is  thereupon  given  the  defen- 
dant until  the  next  rules,  to  rejoin ;  and  the  same  day  is  given 
the  said  plaintiff  there  &c. 

48.  Entry  of  general  rejoinder  to  7'eplication,    and  issue  joined. 

1  Rob.  Prac.  165. 

This  day  came  the  defendant  by  his  attorney,  and  the  said 
defendant,  to  the  replication  of  the  plaintiff,  rejoins  generally, 
and  puts  himself  upon  the  country;  and  the  plaintiff  likewise. 


24  Proceedings  at  rules. 

49.  Oyer  of  obligation  and  condition,  and  demurrer  to  declaration. 

1  Rob.  Prac.  159.  160. 

In  &c.  (as  in  No.  28.)  A.  C.  ads  J.  jP.  K. 

And  the  said  A.  C.  by  his  attorney  comes  and  defends 
the  wrong  and  injur}"-,  when  &c.  and  craves  oyer*  of  the 
said  supposed  writing  obligatory  in  the  said  declaration  men- 
tioned, and  it  is  read  to  him  in  these  words:  "  Know  all  men" 
&c.  (Here  insert  it.)  He  also  craves  oyer  of  the  condition  of 
the  said  supposed  writing  obligatory,  and  it  is  read  to  him  in 
these  words :  "  The  condition  of  the  above  obligation"  &c. 
(Here  insert  the  condition.)  Which  being  read  and  heard,  the 
said  A.  C.  says,  that  the  said  declaration  and  the  matters  therein 
contained,  in  manner  and  form  as  the  same  are  therein  stated 
and  set  forth,  are  not  sufficient  in  law  for  the  said  J.  F.  K.  to 
have  or  maintain  his  aforesaid  action  thereof  against  him  the 
said  A.  C.  and  that  he  the  said  A.  C.  is  not  bound  by  the  law 
of  the  land  to  answer  the  same.  And  this  he  is  ready  to  verify. 
Wherefore,  for  want  of  a  sufficient  declaration  in  this  behalf, 
the  said  A.  C.  prays  judgment,  and  that  the  said  /.  F.  K.  may 
be  barred  from  havino:  or  maintainins;  his  aforesaid  action  there- 
of  agaiiret  him  &c. 

*  W^here  there  is  an  endorsement  upon  the  specialty,  but  the 
endorsement  is  not  under  seal,  see  Eibv.  PinduWs  ex'x,  5  Leigh 
109.  As  to  the  effect  of  taking  oyer  only  of  the  contract  men- 
tioned in  one  count  of  the  declaration,  see  Hughes  v.  Moore,  7 
Cranch  190.  In  regard  to  the  consequences  resulting  from  ta- 
king oyer  of  the  bond  where  there  is  no  demurrer  to  the  declara- 
tion, see  Mereditli's  adm'x  v.  Duval,  1  Munf  76.  and  Jarreli's 
adm'rs  v.  Jarrett,  7  Leigh  93.  And  where  the  pleadings  termi- 
nate in  a  demurrer,  and  there  is  a  material  variance  between 
the  bond  alleged  in  the  declaration  and  the  bond  shewn  on  oyer, 
see  Bennett's  ex' or  v.  Loyd,  6  Leigh  316.  See  also  the  cases 
cited  in  1  Rob.  Prac.  159.  160. 

50.  Oyer  of  obligation  and  condition,  and  demurrer  to  one  of  the 

breaches  assigned. 

(As  last,  down  to  the  words  "  which  being  read  and  heard  ;" 
then  proceed  as  follows :)  the  said ,  as  to  the  said  sup- 
posed breach  of  the  said  condition  secondly  above  assigned, 
says,  that  the  said  declaration  of  the  said  in  that  par- 
ticular, and  the  matter  in  the  same  contained,  are  not  sufficient 

in  law  for  the  said to  have  and  maintain  his  said  action 

thereof  against  him  the  said ,  and  that,  to  the  said  decla- 


Proceedings  at  rules.  25 


G 


ration  in  that  particular,  he  the  said is  under  no  neces- 

sit3%  nor  is  in  any  way  bound  by  the  law  of  the  land  to  answer. 
And  this  he  is  ready  to  verify.  Wherefore,  for  want  of  a  suffi- 
cient declaration  in  that  particular,  he  the  said prays 

judgment,  and  that  the  said may  be  barred  from  having 

or  maintaining  his  said  action  thereof  against  him  &c. 

51.  Ejitrij  of  declaration,  defendant's  appearance,  oyer  of  specialty^ 
demurrer  to  declaration,  and  rule  to  Join.     1  Rob.  Prac.  159. 

This  day  came  the  plaintiff  by  his  attorney,  and  filed  his  de- 
claration against  the  defendant:  Whereupon  came  also  the 
defendant  by  his  attorney,  and  prayed  oyer  of  the  writing  obli- 
gatory in  the  declaration  mentioned,  and  of  the  condition  there- 
of, which  being  read  to  him,  the  said  defendant  filed  a  general 
demurrer  to  the  declaration,  and  a  day  is  thereupon  given  the 
plaintiff  until  the  next  rules,  to  join  in  the  said  demurrer;  and 
the  same  day  is  given  the  said  defendant  there  &c. 

52.  Entry  at  succeeding  rule  day,  if  plaintiff  fail  to  join  in  demur-- 

rer.     1  Rob.  Prac.  165.  262. 

The  plaintiff  having  been  ruled  to  join  in  the  defendant's  de- 
murrer, and  failing  so  to  do,  on  the  motion  of  the  defendant 
&c.  (as  in  No.  40.) 


S6  Security  for  costs. 


CHAPTER  III. 

SECURITy  FOR   COSTS. 


1.  Notice  that  security  is  required.     1  Rob.  Prac.  178. 

To  mr.  A.  B.  attorney  for  C.  D. 
Sir, 
An  action  at  law  having  been  commenced  against  me,  in  the 
circuit  superior  court  of  law  and  chancery  for  the  county  of  H. 
in  the  name  of  C.  D.  who  resides  out  of  Virginicr,  notice  is 
hereby  given  to  you,  as  his  attorney,  that  security  is  required 
for  payment  of  the  costs  and  damages  which  may  be  awarded 
to  the  defendant  in  the  said  action,  and  also  of  the  fees  which 
will  become  due  to  the  officers  of  the  court.  Given  under  my 
hand  this day  of 1840. 

2.  Rule  entered  in  courts  in  lieu  of  notice.     1  Rob.  Prac.  178. 

The  defendant,  by  his  attorney,  alleging  that  the  plaintiff  re- 
sides out  of  this  commonwealth,  on  the  motion  of  the  said  de- 
fendant it  is  ordered  that  this  suit  be  dismissed,  unless  security 
for  the  payment  of  such  costs  and  damages  as  maybe  awarded 
to  the  defendant,  and  also  of  the  fees  which  will  become  due  to 
the  officers  of  this  court,  be  given  with  the  clerk  within  sixty 
days  from  this  time. 

3.  Bond,  where  security  is  given  with  the  clerk.     1  Rob.  Prac.  178. 

Know  all  men  by  these  presents  that  I,  W.  F.  W.  am  held 
and  firmly  bound  unto  J.  P.  in  the  sum  of  $  200,  to  be  paid 
unto  the  said  J.  P.  his  executors,  administrators  or  assigns ;  for 
which  paj'ment  well  and  truly  to  be  made,  I  bind  myself,  my 
heirs,  executors  and  administrators,  firmly  by  these  presents. 
Sealed  with  my  seal,  and  dated  this day  of . 

The  condition  of  the  above  obligation  is  such,  that  whereas, 
in  a  suit  in  the  circuit  superior  court  of  law  and  chancery  for 
the  county  of  H.  between  J.  H.  plaintiff  and  J.  P.  defendant, 
the  defendant  alleged  that  the  plaintiff  resided  out  of  the  com- 
monwealth, and  thereupon,  to  wit,  on  the  12th  day  of  April  last, 
the  court  ordered  that  the  suit  should  be  dismissed,  unless  se- 


Security  for  costs.  27 

curity  for  the  payment  of  such  costs  and  damages  as  might  be 
awarded  to  the  defendant,  and  also  of  the  fees  which  would 
become  due  to  the  officers  of  the  court,  should  be  given  with 
the  clerk  within  sixty  days  from  that  time :  Now  if  the  above 
bound  W.  F.  W.  shall  well  and  truly  pay  all  such  costs  and 
damages  as  may  be  awarded  to  the  defendant  in  case  the  plain- 
tiff shall  be  cast  in  the  said  suit,  and  if  the  said  W.  F.  W.  shall 
also  pay  all  the  fees  which  will  become  due  from  the  said  plain- 
tiff to  the  officers  of  the  said  court,  then  the  above  obligation  is 
to  be  void,  otherwise  it  is  to  remain  in  full  force. 

4.  Recognizance^  where  security  is  given  in  court.  1  Rob.  Prac.  178. 

A.  B.  of  this  county  comes  into  court,  and  undertakes  for  the 
plaintiff,  that  he  shall  satisfy  and  pay  all  such  costs  and  da- 
mages as  may  be  awarded  to  the  defendant,  in  case  the  plaintiff 
shall  be  cast  in  this  suit,  and  also  that  he  the  said  plaintiff  shall 
satisfy  and  pay  all  the  fees  which  will  become  due  from  him 
to  the  officers  of  this  court ;  or  that  he  the  said  A.  B.  will  sa- 
tisfy and  pay  those  costs,  damages  and  fees  for  him. 

6.  Suit  dismissed  for  want  of  security,  after  sixty  days  notice. 
1  Rob.  Prac.  178.  262. 

The  plaintiff  not  residing  in  this  commonwealth,  and  notice 
having  been  given  to  his  attorney  by  the  defendant,  that  secu- 
rity is  required  for  payment  of  the  costs  and  damages  which 
may  be  awarded  the  defendant,  and  also  of  the  fees  which  will 
become  due  to  the  officers  of  the  court,  and  such  security  not 
having  been  given  within  sixty  days  after  that  notice,  or  at  any 
time  since  ;  on  the  motion  of  the  defendant  by  his  attorney,  it 
is  ordered  that  this  suit  be  dismissed,  and  that  the  plaintiff  pay 
to  the  defendant  his  costs  by  him  about  his  defence  in  this  be- 
half expended. 

6.  Suit  dismissed  for  want  of  security,  after  rule  requiring  it.  1  Rob. 
Prac.  178.  262. 

The  plaintiff  not  having  given  the  security  required  by  an 
order  made  at  the  last  terra,  for  payment  of  the  costs  and  da- 
mages which  may  be  awarded  to  the  defendant,  and  also  of 
the  fees  which  will  become  due  to  the  officers  of  the  court ;  on 
the  motion  of  the  defendant  &c.  (as  in  the  last  form.) 


28  Rule  for  hail,  and  exceptions  to  hail. 

CHAPTER  IV. 

RULE    FOR   BAIL,    AND    EXCEPTIONS    TO    BAIL. 


1.   Order  ruling  defendant  to  give  hail.     1  Rob.  Prac.  241.* 

Bail  not  having  been  required  in  this  action,  on  the  motion  of 
the  plaintiff  by  his  attorney,  and  for  good  cause  shewn,  the 
court  doth  rule  the  defendant  to  give  special  bail. 

*  When  an  action  has  been  brought  of  such  a  nature  that  the 
plaintiff  could  not  of  right  demand  bail,  and  there  has  been  no 
direction  by  a  judge  or  justice  for  bail  to  be  taken,  the  court 
may  notwithstanding,  under  the  act  in  1  Rev.  Code,  ch.  128. 
^  150.  rule  the  defendant  to  give  special  bail.  But  before  this 
rule  is  made,  good  cause  must  be  shewn ;  and  this  can  only  be 
done  by  affidavit,  verifying  the  justice  of  the  plaintiff's  action, 
and  shewing  probable  cause  to  apprehend  that  the  defendant 
will  depart  from  the  jurisdiction  of  the  court.  Hawthorn  v. 
Hunter,  8  Leigh  411. 

2.  Exceptions  to  hail  taken  hy  an  officer.     1  Rob.  Prac.  241. 

In  the  circuit  superior  court  of  law  and  chancery  for  the 
county  of  Henrico  and  city  of  Richmond. 
Between  A.  B.  plaintiff  and  C.  D.  defendant. 

The  plaintiff  excepts  to  the  sufficiency  of  the  bail  taken  by 
the  officer  in  whose  custody  the  defendant  was.  Dated  this 
day  of . 


-,  attorney  for  the  plaintiff. 


3.  Entry  of  such  exceptions.     1  Rob.  Prac.  241,  2. 

The  plaintiff,  by  his  attorney,  this  day  filed  exceptions  to  the 
sufficiency  of  the  bail  taken  by  the  officer  in  whose  custody  the 
defendant  was. 


Rule  for  hail,  and  exceptions  to  hail.  29 

4.  Decision  upon  exceptions  to  hail  taken   hy  an  officer.     1  Rob. 

Prac.  241. 

A.  B.  deputy  for  C.  D.  sheriff  of  this  county,  having,  when 
the  defendant  was  in  his  custody,  taken  E.  F.  as  special  bail 
for  the  said  defendant,  and  the  plaintiff'  having  filed  exceptions 
to  the  sufficiency  of  the  said  bail ;  the  court,  after  hearing  the 
evidence  adduced  before  it,  doth  adjudge  the  said  bail  to  have 
been  insufficient  at  the  time  of  taking  the  same. 

5.  After  officer  is  hound  as  hail,  rule  upon  defendant  to  give  other 

special.hail.     1  Rob.  Prac.  242. 

The  ojQBcer  who  took  the  bail  in  this  cause  being  bound  in 
consequence  of  the  bail  being  adjudged  to  have  been  insufficient 
at  the  time  of  taking  the  same ;  on  the  motion  of  the  said  oflfi- 
cer,  and  for  good  cause  shewn,  the  court  doth  rule  the  defen- 
dant to  give  other  special  bail. 

6.  Entry  of  exceptions  to  hail  taken  hy  any  other  than  an  officer. 
1  Rob.  Prac.  241,  2. 

The  plaintiff",  by  his  attorney,  here  in  court  excepts  to  the 
special  bail  taken  in  this  cause  by  A.  B.  a  justice  of  the  peace 
of  the  county  of  H. 

7.  Exceptions  to  hail  taken  hy  o^cer,for  insufficiency  happening  after 

recognizance  taken.     1  Rob.  Prac.  241,  2. 

The  plaintiff",  by  his  attorney,  here  in  court  excepts  to  the 
special  bail  taken  by  the  officer  in  whose  custody  the  defendant 
was,  for  insufficiency  happening  after  the  recognizance  was 
taken. 

8.  Decision  upon  exceptions  to  hail  in  either  of  two  last  cases.  1  Rob. 

Prac.  241,  2. 

The  court,  upon  consideration  of  the  exceptions  made  to  the 
special  bail  in  this  cause,  and  after  hearing  evidence  in  relation 
thereto,  doth  sustain  the  said  exceptions,  and  rule  the  defendant 
to  give  other  special  bail. 


30  Surrender  of  defendant  by  his  hail. 

CHAPTER  V. 

SURRENDER  OF  DEFENDANT  BY  HIS  BAIL 


1.  Bail  piece. 

See  1  Rob.  Prac.  199.  1  R.  C.  1819,  p.  501.  ^  52.  Sess. 
Acts  1825-6,  p.  23.  <^  7. 

2.  Entry  of  surrender  in  court  in  pending  suit.     1  Rob.  Prac. 

181,  2,  3. 

E.  F.  special  bail  for  the  defendant,  for  the  purpose  of  dis- 
charging himself  from  his  recognizance  and  undertaking  as 
such,  this  day  in  open  court  surrendered  the  said  defendant; 
and  the  said  E.  F.  from  his  said  recognizance  and  undertaking 
is  therefore  now  discharged.  And  the  defendant  is  committed 
to  the  custody  of  the  sheriff  of  this  county. 
Or,  if  the  action  be  detinue : 

E.  F.  special  bail  for  the  defendant,  for  the  purpose  of  dis- 
charging himself,  so  far  as  he  can,  from  his  recognizance  and 
undertaking  as  such,  this  day  in  open  court  surrendered  the 
said  defendant ;  whereby  the  said  E.  F.  is  now  discharged  from 
the  payment  of  the  alternative  value  of  the  property  in  contro- 
versy, and  the  costs  and  damages,  but  is  not  discharged  from 
the  obligation  to  deliver  the  specific  property.  And  the  defen- 
dant is  thereupon  committed  to  the  custody  of  the  sheriff  of  this 
county. 

3.  Defendant  discharged  on  giving  other  good  special  bail.     1  Rob. 

Prac.  181,  2,  3. 

A.  B.  of  H.  county,  whose  sufficiency  is  verified  on  oath  to 
the  satisfaction  of  the  court,  comes  into  court,  and  undertakes 
&c.  (here  enter  the  recognizance  as  in  chapter  L  No.  15.) 
Whereupon  it  is  ordered  that  the  defendant  be  discharged  from 
custody. 

4.  Entry  of  surrender  in  court  after  judgment. 

E.  F.  special  bail  for  the  defendant,  against  whom  judgment 
has  been  rendered  in  this  suit,  for  the  purpose  of  discharging 


Surrender  of  defendant  by  his  bail.  31 

himself,  so  far  as  he  can,  from  his  recognizance  and  underta- 
king as  such  special  bail,  this  day  surrendered  the  said  defendant 
in  open  court.  And  on  the  prayer  of  the  plaintiff,  the  said  defen- 
dant is  committed  to  the  custody  of  the  sheriff  of  this  county,  charged 
in  execution  upon  the  said  judgment. 

{Or,  in  lieu  of  the  words  in  italics,  say:)  But  the  said  defen- 
dant is  not  committed  to  custody,  the  plaintiflf's  attorney  not 
desiring  him  to  be  charged  in  execution. 

5.  Entry  of  defendant'' s  surrender  of  himself  in  court  after  judgment* 

The  defendant,  against  whom  judgment  has  been  rendered 
in  this  suit,  for  the  purpose  of  discharging  his  special  bail,  so 
far  as  he  can,  from  the  recognizance  and  undertaking  entered 
into  by  the  said  special  bail,  this  day  surrendered  himself  in 
open  court.  And  on  the  prayer  &c.  Or:  But  &c.  (as  in  the 
last  form.) 

6.  Receipt  for  defendant,  lohen  surrender  is  not  in  court.     1  Rob. 

Prac.  1S3. 

E.  F.  special  bail  for  C.  D.  in  an  action  pending*  in  the  county 
court  of  H.  between  A.  B.  plaintiff  and  the  said  C.  D.  and  one 
Gr.  H.  defendants, t  this  day  surrendered  to  me  the  said  C.  D. 
whose  body  1  have  received  and  have  now  in  custody. 

*  Omit  the  word  "  pending,"  if  there  has  been  a  judgment. 

t  Insert  the  words  "  wherein  final  judgment  has  been  ren- 
dered for  the  plaintiff,"  if  such  be  the  state  of  the  case. 

Or: 

E.  F.  special  bail  for  C.  D.  in  an  action  in  the  county  court 
of  H.  between  A.  B.  plaintiff  and  the  said  C.  D.  and  one  G. 
H.  defendants,  has  this  day  delivered  to  me  a  certified  copy  of 
his  recognizance,  and  a  certificate  annexed  thereto  from  the 
clerk  of  the  said  court,  slating  the  situation  of  the  said  action, 
and  specifying  that  final  judgment  hath  been  rendered  therein ; 
and  the  said  E.  F.  in  discharge  of  his  recognizance,  has  com- 
mitted to  my  keeping  the  body  of  the  said  C.  D.  who  was  pre- 
viously and  is  now  in  my  custody  under  the  following  process, 
to  wit :  (here  describe  it  plainly.)  Given  under  my  hand  this 
clay  of . 

7.  Notice  of  surrender  out  of  court.     1  Rob.  Prac.  183. 

To  mr.  A.  B. — Sir,  Being  special  bail  for  C.  D.  in  an  action 
in  the  county  court  of  H.  between  A.  B.  plaintiff  and  the  said 


B2  Surrender  of  defendant  hy  his  hail. 

C.  D.  and  one  G.  H.  defendants,  wherein  final  judgment  has 
been  rendered  for  the  plaintiff,  and  desiring  to  be  discharged 
from  my  recognizance,  I  have  this  day  surrendered  the  said 
C.  I),  to  the   sheriff  of  the  county  of  H.  of  which  you  will 

please  take  notice.     Given  under  my  hand  this  day 

of . 

Or: 
To  mr.  A.  B. — Sir,  Being  special  bail  for  C.  D.  in  an  ac- 
tion in  the  county  court  of  H.  between  A.  B.  plaintiff  and  the 
said  C.  D.  and  one  G.  H.  defendants,  which  C.  D.  is  now  im- 
prisoned in  the  jail  of  the  county  of  C.  by  virtue  of  legal  pro- 
cess, and  desiring  to  surrender  the  said  C.  D.  in  discharge  of 
my  recognizance,  1  have  obtained  a  certified  copy  of  the  said 
recognizance,  and  a  certificate  annexed  thereto  from  the  clerk  of 
the  said  court,  stating  the  situation  of  the  said  action,  and  spe- 
cifying that  final  judgment  hath  been  rendered  therein ;  and  I 
have  delivered  the  said  certified  copy  of  the  recognizance,  and 
the  said  certificate  of  the  clerk,  to  the  sheriff  in  whose  custody 
the  said  C.  D.  is,  and  obtained  his  receipt.  You  will  therefore 
take  notice  that  the  said  C.  D.  is  now  committed  to  the  keeping 
of  the  sheriff  of  the  said  county  of  C.  in  discharge  of  my  said 

recognizance  as  special  bail.     Given  under  my  hand  this 

day  of . 

30.  Notice  of  motion  for  exoneretur.     1  Rob.  Prac.  184. 

To  mr.  A.  B. 

Sir, 
Take  notice  that  on  the  first  day  of  the  next  quarterly  term 
of  the  county  court  oi  H.  1  shall  apply  to  the  said  court  to  enter 
an  exoneretur  discharging  me  forever  from  my  recognizance  as 
special  bail  for  C.  D.  in  an  action  in  the  said  court  between  A. 
B.  plaintiff  and  the  said  C.  D.  and  one  G.  H.  defendants,  where- 
in final  judgment  has  been  rendered  for  the  plaintiff.  Given 
under  my  hand  this day  of . 

31.  Exoneretur  entered.     1  Rob.  Prac.  184. 

It  appearing  that  E.  F.  special  bail  for  the  defendant  C.  D. 
has  surrendered  his  principal  to  the  custody  of  the  sheriff  of 
this  county  {or,  has  committed  his  principal  to  the  keeping  of 
the  sheriff  of  the  county  of  C.  in  whose  custody  the  said  prin- 
cipal was  before)  and  the  said  E.  F.  exhibiting  before  the  court 
satisfactory  evidence  that  in  due  time  thereafter  he  gave  to  the 
plaintiff  such  notice  of  the  surrender  {or  commitment)  as  is  re- 
quired, and  the  plaintiff  having  had  reasonable  notice  of  the  said 


Surrender  of  defendant  by  his  bail.  33 

£.  F.^s  application  for  an  exoTieretur,  the  court  is  of  opinion  that 
the  said  E.  F.  is  now  entitled  to  an  exoneretur,  and  the  same  is 
entered  accordingly.  Wherefore  the  said  E.  F.  is  discharged 
from  his  recognizance,  in  the  same  manner  as  if  he  had  surren- 
dered his  principal  in  court. 

32.   Writing  charging  defendant  in  execution.  1  Rob.  Prac.  185. 

To  the  sheriff  of  the  county  of  H. — Sir,  E.  F.  special  bail 
for  C.  D.  in  an  action  in  the  county  court  of  H.  between  A.  B, 
plaintiff  and  the  said  C.  D.  and  one  G.  H.  defendants  (wherein 
final  judgment  has  been  rendered  for  the  plaintiff)  having  given 
me  notice  that  he  has  surrendered  the  said  C.  D.  to  you,  /  do 
now,  by  this  writing,  charge  the  said  C.  D.  in  execution.  Given 
under  my  hand  this day  of . 

33.  Consent  by  creditor  to  discharge  of  principal.     1  Rob.  Prac. 

185. 

(As  last,  except  line  in  italics,  in  lieu  of  which  proceed  as  fol- 
lows :)  And  it  not  being  intended  by  me  to  charge  the  said  C.  D. 
in  execution,  I  consent  that  he  may  be  discharged  without  being 
kept  in  custody  twenty  days. 


34  Death  or  cluuige  of  parties. 

CHAPTER  VI. 

DEATH  OR  CHANGE  OF  PARTIES. 


1.  Suggestion  of  plaintiff's  death.     1  Rob.  Prac.  246. 

The  plaintiff  having  died,  it  is  ordered  that  his  death  be  sug- 
gested upon  the  record. 

2.  Discontimmnce  of  suit  at  second  term  after  suggestion  of  plain- 

tiff's death.     1  Rob.  Prac.  246. 

The  representative  of  the  plaintiif  not  having  appeared  and 
prayed  for  a  scire  facias,  and  this  being  the  second  term  since 
the  death  of  the  said  plaintiff  was  suggested  upon  the  record, 
it  is  ordered  that  this  action  be  discontinued. 

3.  Order  awarding  scire  facias  to  renoive  in  the  name  of  or  against 

a  representative.     1  Rob.  Prac.  187. 

The  plaintiff  being  dead,  on  the  motion  of  S.  P.  executor  of 
his  last  will  and  testament,  by  his  attorney,  a  writ  of  scire  facias 
is  awarded  him  to  revive  this  action  in  the  name  of  the  said 
executor  against  the  defendant,  returnable  here  at  the  next 
term. 

Or:  The  defendant  being  dead,  on  the  motion  of  the  plaintiff 
by  his  attorney,  a  writ  of  scire  facias  is  awarded  him  to  revive 
this  action  against  A.  B.  administrator  of  the  estate  of  the  said 
defendant,  returnable  here  at  the  next  term. 

4.  Scire  facias  to  revive  in  the  name  of  the  representative  of  a  party. 

1  Rob.  Prac.  187. 

The  commonwealth  &c.     Whereas  an  action  of has 

been  depending  in  our  circuit  superior  court  of  law  and  chan- 
cery for  the  county  of  H.  between  F.  H.  plaintiff  and  J.  H. 
defendant,  and  before  judgment  was  given  or  verdict  rendered 

therein,  the  said died,  and  A.  B.  his  executor  {or,  A.  B. 

his  administrator — or,  A.  B.  sheriff  of  the  county  of  H.  who  as 
such  is  administrator,  or  administrator  with  the  will  annexed,  of 
the  said  F.  H.)  has  applied  for  a  scire  facias  against  the  defen- 


Death  or  change  of  parties.  35 

dant :  Therefore  we  command  you  that  you  make  known  to  the 
said  J.  H.  that  he  be  before  the  judge  of  our  said  court  at  &c. 
on  the  first  day  of  the  next  term,  to  shew  cause,  if  any  he  can, 
why  the  said  action  should  not  be  proceeded  in  to  a  final  judg- 
ment.    And  have  then  there  this  writ.     Witness  &c. 

If  it  be  the  defendant  who  has  died,  and  the  action  is  any  other 
than  detinue,  proceed  as  above  to  the  ivord  "  died,^^  and  then  as  fol- 
lows:  And  the  plaintiff  has  applied  for  a  scire  facias  against 
A.  B.  executor  {or,  administrator)  of  the  said  J.  H.  {or,  against 
A.  B.  sheriff  of  the  county  of  II.  who  as  such  is  administrator, 
or,  administrator  with  the  will  annexed,  of  the  said  J.  H.): 
Therefore  we  command  you  that  you  make  known  to  the  said 
A.  B.  executor  {or  administrator)  as  aforesaid  {or,  A.  B.  sheriff 
and  administrator  as  aforesaid)  that  he  be  &c.  (as  above.)  "^ 

If  the  action  be  detinue,  and  the  defendant  has  died,  proceed  as 
before  to  the  word  "  died,''^  and  then  -as  follows :  And  now  on  behalf 
of  the  said  F.  H.  we  are  informed,  that  since  the  death  of  the 
said  J.  H.  the  property  for  which  the  said  action  was  brought 
has  come  to  the  hands*  of  A.  B.  executor  {or  administrator)  of 
the  said  J.  H.  {or,  to  the  hands  of  A.  B.  sheriff  &c.)  And  the 
said  F.  H.  has  applied  for  a  scire  facias,  according  to  the  form 
of  the  statute :  Therefore  &c.  (as  last.) 

•  The  scire  facias  ought  regularly  to  set  forth,  by  way  of  sug- 
gestion at  least,  that  the  property  has  come  to  the  hands  of  the 
representative  since  the  decedent's  death.  For  without  such 
allegation,  the  case  does  not  appear  to  be  one  in  which  an  ori- 
ginal action  could  be  maintained  against  the  representative. 
But  if  the  scire  facias  be  defective  in  this  respect,  the  plaintiff 
may  file  a  declaration  containing  the  necessary  averments,  or 
he  may  have  the  writ  quashed,  and  another  sued  out  with  the 
proper  suggestion  therein.  Allen's  ex'or  v.  Harla?i's  adnCr,  6 
Leigh  42.     Catlett^s  ex'or  v.  Russell,  6  Leigh  344. 

5.  Scire  facias  to  revive  suit  commenced  by  an  executor  or  adminis- 
trator, in  the  name  of  administrator  de  bonis  non.     1  Rob.  Prac. 

188. 

Whereas  an  action  of has  been  pending  in  &c.  be- 
tween A.  B.  executor  of  the  last  will  and  testament  {or,  admi- 
nistrator of  the  personal  estate)  of  C.  D.  plaintiff,  and  E.  F.  de- 
fendant, and  before  judgment  was  given  or  verdict  rendered 
therein,  the  said  A.  B.  died,  and  certificate  has  been  granted 
G.  H.  for  obtaining  letters  of  administration  on  the  estate  of  the 
said  C.  D.  unadministered  by  A.  B.  and  the  action  aforesaid 
having  been  brought  upon  a  contract  made  (or,  for  a  cause  of 


S^  Death  or  change  of  parties. 

action  which  accrued)  in  the  lifetime  of  the  said  C.  D.  he  the 
said  G.  H.  administrator  de  bonis  non  as  aforesaid,  has  applied 
for  a  scire  facias  to  revive  the  same :  Therefore  &c. 

6.  Scire  facias  to  revive  suit  brought  by  a  curator,  in  the  name  of 
executor  or  administrator.     Sess.  Acts  1S39,  p.  42.  ch.  66.  §  1. 

Whereas  an  action  of has  been  pending  in  &c.  be- 
tween A.  B.  curator  of  the  estate  of  C.  D.  deceased,  plaintiff, 
and  E.  F.  defendant,  and  before  judgment  was  given  or  verdict 
rendered  therein,  certificate  was  granted  G.  H.  for  obtaining  a 
probat  of  the  will  of  the  said  C.  D.  {or,  for  obtaining  letters  of 
administration  on  the  estate  of  the  said  C.  D.)  and  the  said  G. 
H.  has  applied  for  o.  scire  facias  to  revive  the  said  action  in  his 
name  as  executor  {or  administrator)  as  aforesaid  :  Therefore  &c. 

7.  Scire  facias  to  revive  against  committee  a  suit  depending  against 

idiot  or  lunatic.     1  Rob.  Prac.  247. 

Whereas  an  action  of has  been  depending  in  &c.  be- 
tween &c.  and  before  judgment  was  rendered  therein,  the  said 
C.  D.  became  a  lunatic,  and  E.  F.  was  appointed  his  commit- 
tee ;  and  the  plaintiff  has  applied  for  a  scire  facias  against  the 
said  committee  :  Therefore  we  command  you  that  you  make 
known  to  the  said  E.  F.  committee  as  aforesaid,  that  he  be  &c. 

8.  Scire  facias  to  revive  against  an  idiot  or  lunatic  a  suit  depending 

against  his  committee.    1  Rob.  Prac.  247. 

Whereas  an  action  of has  been  depending  in  &c.  be- 
tween A.  B.  plaintiff,  and  E.  F.  committee  of  C.  D.  a  lunatic, 
defendant,  and  before  judgment  was  rendered  therein,  the  said 
C.  D.  was  discharged  from  his  committee;  and  the  plaintiff  has 
applied  for  a  scire  facias  against  the  said  C.  D.  Therefore  we 
command  you  that  you  make  known  to  the  said  C.  D.  that  he 
be  &c. 

9.  Sheriff^ s  return  upon  scire  facias  against  a  party  in  the  common- 

wealth.    1  Rob.  Prac.  189. 

When  the  defendant  is  found,  a  return  of  *'  executed"  is  suf- 
ficient. 

(When  the  defendant  cannot  be  found,  the  return  may  be  as 
follows :)  Not  finding  the  defendant,  I  left  a  copy  of  this  writ  at 

his  usual  place  of  abode,  on  the day  of ,  with  A. 

B.*  a  free  white  person  above  the  age  of  sixteen  years,  who 


Death  or  change  of  'parties.  37 

was  found  there,  and  is  one  of  the  family  of  the  defendant ;  and 
I  informed  the  said  A.  B.  of  the  purport  thereof. 

Or:  I  left  a  copy  of  this  writ,  on  the  ■  day  of , 

at  the  defendant's  dwelling  house,  in  a  public  place,  to  wit,  in 
his  dining  room,  on  the  mantel-piece ;  he  the  said  defendant 
being  from  home,  and  no  free  white  person  of  his  family  being 
found  there,  capable  of  receiving  a  notice  for  him. 

*  If  the  notice  was  left  with  the  wife  of  the  defendant,  use 
(after  A.  B.)  the  words  •'  his  wife." 

10.  Order  awarding  scire  facias  against  defendant  who  is  out  of  the 

commonwealth.     1  Rob.  Prac.  189,  90. 

The  plaintiff  being  dead,  on  the  motion  of  S.  P.  executor  of 
his  last  will  and  testament,  by  his  attorney,  a  writ  o^  scire  facias 
is  awarded  him  to  revive  this  suit  in  the  name  of  the  said  exe- 
cutor against  the  defendant,  returnable  here  at  the  next  term. 
And  it  appearing  by  an  affidavit  filed  with  the  clerk,  that  the 
defendant  is  out  of  the  commonwealth,  the  said  writ  may  be 
served  on  the  defendant's  agent  or  attorney  in  fact,  if  any  he 
have  within  the  commonwealth ;  or,  if  he  have  no  such  agent 
or  attorney  known,  by  publication  for  four  weeks  successively, 
previous  to  the  return  day  of  the  writ,  in  some  newspaper  pub- 
lished in  this  commonwealth. 

11.  Scire  facias  against  defendant  who  is  out  of  the  commonwealth. 

1  Rob.  Prac.  189,  90. 

The  commonwealth  &c.     Whereas  an  action  of has 

been  depending  in  &c.  between  &c.  and  before  judgment  was 

given  or  verdict  rendered  therein,  the  said died,  and 

his  executor  has  applied  for  a  scire  facias  against  the  de- 
fendant ;  and  it  appears  by  an  aflBdavit  filed  with  the  clerk  of 
our  said  court,  that  the  defendant  is  out  of  the  commonwealth, 
by  reason  whereof,  according  to  the  statute  in  such  case  made, 
the  scire  facias  may  be  served  on  the  defendant's  agent  or  attor- 
ney in  fact,  if  any  he  have  within  the  commonwealth,  or,  if  he 
have  no  such  agent  or  attorney  known,  by  publication  for  four 
weeks  successively,  previous  to  the  return  day  of  the  writ,  in 
some  newspaper  published  in  this  commonwealth :  Therefore 
we  command  you  that  you  make  known,  according  to  the  sta- 
tute aforesaid,  that  the  said ,  the  defendant  aforesaid,  be 

before  the  judge  of  our  said  court,  at  &c.  on  &c.  to  shew  &c. 
(as  in  No.  4.) 


99  Death  or  change  of  parties. 

12.  Return  of  service  upon  agent.     1  Rob.  Prac.  189. 

A.  B.  being  the  defendant's  agent  {or,  attorney  in  fact)  within 
this  commonwealth,  I  have  served  this  writ  on  the  said  A.  B. 

13.  Publication.     1  Rob.  Prac.  189,  90. 

To  mr.  C.  D. — Sir,  As  you  have  not  any  known  agent  or 
attorney  in  fact  within  this  commonwealth,  I  therefore  cause 
publication  to  be  made  of  the  following  writ,  for  the  time  and 
in  the  manner  required  by  the  statute  in  such  case.  Given  un- 
der my  hand  this day  of 


deputy  for sheriff  of  H.  county. 

14.  Return  of  service  by  publication.     1  Rob.  Prac.  189,  90. 

The  within  named  C.  D.  having  no  known  agent  or  attorney 
in  fact  within  this  commonwealth,  I  have  caused  publication  of 
this  writ  to  be  made  for  four  weeks  successively,  previous  to  the 
return  day  thereof,  in  the  Richmond  Enquirer,  a  newspaper 
printed  within  the  commonwealth. 

16.  Order  reviving  suit  against  personal  representative  by  consent. 
Greenlee's  admW  v.  Bailey,  9  Leigh  526. 

The  defendant  J.  M.  having  died,  by  consent  as  well  of  the 
plaintiff  as  of  J.  A.  administrator  of  the  estate  of  the  said  S. 
G.  unadministered  by  the  said  J.  M.  it  is  ordered  that  this  ac- 
tion stand  revived  against  him  the  said  J.  A.  administrator  as 
aforesaid. 

16.  E7itry  upon  scire  facias  against  personal  representative  being 

returned  executed.  *  1  Rob.  Prac.  245. 

The  scire  facias  issued  in  this  cause  being  returned  executed 
on  the  said  E.  F.  it  is  ordered  that  the  suit  be  proceeded  in 
against  him  as  executor  {or,  administrator)  of  the  said  C.  D. 

17.  Entry  after  return  of  a  scire  facias  against  personal  representa- 

tive, when  he  pleads  de  novo.     1  Rob.  Prac.  245. 

The  scire  facias  issued  in  this  cause  against  E.  F.  as  executor 
{or,  administrator)  of  the  said  C.  D.  being  returned  executed, 
this  day  came  the  said  E.  F.  by  his  attorney,  and  on  his  motion 
he  is  allowed  to  plead  de  novo  to  the  plaintiff's  action  :  where- 
upon he  pleaded  &c.  (or,  he  filed  &c.) 


Death  or  change  of  'parties.  3^ 

18.  Order  suhstituting  an  administrator  de  bonis  non  as  plaintiff  in 
the  place  of  an  executor  whose  powers  have  been  revoked.  1  Rob. 
Prac.  247. 

The  power  of  the  said  A.  B.  as  executor  {or,  administrator) 
having  been  revoked  and  annulled,  and  administration  de  bonis 
non  upon  the  estate  of  the  said  C.  D.  having  been  granted  to  E. 
F.  as  appears  by  a  copy  of  an  order  of  the  county  court  of  H. 
now  here  produced,  on  the  motion  of  the  said  E.  F.  it  is  ordered 
that  this  suit  be  hereafter  conducted  in  bis  name  as  administra- 
tor de  bonis  non  aforesaid. 

19.  Order  substituting  an  administrator  be  bonis  non  as  defendant  in 
the  place  of  an  executor  whose  powers  have  been  revoked.  1  Rob. 
Prac.  247. 

The  power  &c.  as  appears  &c.  on  the  motion  of  the  plaintiff, 
it  is  ordered  that  the  said  E.  F.  administrator  de  bonis  non  a» 
aforesaid,  be  substituted  as  defendant  in  this  suit. 

20.  Entry  where  one  of  two  plaintiffs  dies.    1  Rob.  Prac.  188.  246* 

The  plaintiff  A.  B.  having  died,  and  the  cause  of  action  sur- 
viving to  the  surviving  plaintiff,  it  is  ordered  that  this  action 
proceed  against  the  defendants  at  the  suit  of  the  said  surviving 
plaintiff. 

21.  Entry  where  one  of  two  defendants  dies.  1  Rob.  Prac.  188.  246, 

The  defendant  C.  D.  having  died,  and  the  cause  of  action  sur- 
viving against  the  surviving  defendant,  it  is  ordered  that  this- 
action  proceed  against  him. 

22.  Entry  where  a  feme  plaintiff  marries.     1  Rob.  Prac.  248. 

Satisfactory  information  being  given  of  the  marriage  of  the 
plaintiff  to  C  D.  it  is  ordered  that  the  same  be  suggested  upon* 
the  record,  and  that  this  suit  be  henceforth  proceeded  in  in  the 
names  of  the  said  C  D.  and  the  said  A^  his  wife. 


40-  Removal  of  causes. 


CHAPTER  VII. 

REMOVAL    OF    CAUSES. 


1.   Writ  of  habeas  corpus  cum  causa.     1  Rob.  Prac.  190. 

The  commonwealth  &c.  Whereas  it  has  been  certified  that 
A.  B.  has  been  committed  in  a  civil  action  to  the  jail  of  the  city 
of  jR.  and  is  now  actually  in  jail,  for  a  matter  cognizable  in  the 
circuit  superior  court  of  law  and  chancery  for  the  county  of  H. 
and  city  of  jR. — We  therefore,  upon  the  application  of  the  said 
A.  B.  command  you  that  the  body  of  the  said  A.  B.  by  whatso- 
ever name  he  is  called,  together  with  the  day  and  cause  of  his 
caption  and  detention,  you  have  before  the  judge  of  our  said 
circuit  superior  court,  at  &c.  on  the  first  day  of  the  next  term, 
to  do  and  receive  what  our  said  judge  then  and  there  of  him  in 
this  part  shall  consider.     And  have  &c. 

2.  Return  upon  habeas  corpus  cum  causa. 

The  within  named  A.  B.  was  taken  into  my  custody  on  the 

day  of ,  by  virtue  of  the  following  process,  to  wit : 

(Here  describe  the  same.)  And  he  is  detained  for  no  other 
cause. 

3.   Order  upon  return  of  habeas  corpus  cum  causa.     1  Rob.  Prac. 

190,  91,  92. 

The  clerk  having,  upon  the  application  of  A.  B.  and  a  certifi- 
cate of  his  being  actually  in  the  jail  of  the  city  of  R.  issued  a 
writ  of  habeas  corpus  cum  cau^a,  directed  to  the  serjeant  of  the 
said  city,  returnable  on  this  day,  the  said  serjeant  this  day 
brought  before  the  court  the  body  of  the  said  A.  B.  and  made 
return  upon  the  said  writ,  that  the  said  A.  B.  was  taken  into  his 

custody  on  the day  of ,  by  virtue  of  the  following 

process,  to  wit  (here  describe  the  same)  and  that  the  said  A.  B. 
is  detained  for  no  other  cause.  Whereupon,  it  appearing  that 
no  issue  or  demurrer  has  been  joined  in  the  cause  wherein  the 
said  A.  B.  has  been  committed,  the  court  doth  order  that  the 
said  cause  be  removed  into  this  court,  and  that  the  body  of  the 
said  A.  B.  be  now  committed  to  the  jail  of  this  court.     And  the 


1^ 


Removal  of  causes.  41' 


clerk  is  directed  to  deliver  a  copy  of  this  order  to  the  said  Ser- 
jeant, to  be  by  him  returned  to  the  court  from  which  the  before 
mentioned  process  issued. 

4.  Certiorari  awarded  to  remove  a  cause  originally  cognizable  in  a 

circuit  court.     1  Rob.  Prac.  192. 

This  day  came  J.  H.  E.  by  his  attorney,  and  moved  the  court 
for  a  writ  of  certiorari  to  remove  hither  an  action  of  trespass  on 
the  case,  depending  in  the  court  of  hustings  for  the  city  of  R.  be- 
tween the  said  J.  H.  E.  plaintiff  and  H.  L.  C.  defendant ;  and 
the  said  H.  L.  C.  came  also  by  his  attorney^  and  acknowledged  to 
have  received  legal  notice  of  this  motion.  Whereupon,  it  appearing 
that  the  cause  of  action  in  the  said  suit  was  originally  cogniza- 
ble in  this  court,  a  writ  of  certiorari  is  awarded  agreeably  to  the 
motion  of  the  said  J.  H.  E.  returnable  here  &c. 

If  the  adverse  party  does  not  ajrpear  and  acknowledge  notice^  then, 
in  lieu  of  the  words  in  italics,  insei't  the  following:  and  it  being 
shewn  to  the  court  that  ten  days  previous  notice  of  this  motion 
has  been  given  in  writing  to  the  said  H.  L.  C.  he  was  solemnly 
called,  but  came  not. 

5.  Certiorari  awarded  to  remove  a  cause,  where  justice  cannot  be  done 

in  county  court.     1  Rob.  Prac.  192. 

This  day  &c.  (as  before.)  Whereupon,  it  appearing  to  the 
court  that  justice  cannot  be  done  in  the  said  cause,  and  that  it 
has  come  to  the  knowledge  of  the  said  J.  H.  E.  after  issue  joined 
{or,  writ  of  enquiry  awarded)  in  the  said  suit,  a  writ  o^  certiorari 
is  awarded  &c.  (as  before.) 

6.  Certiorari  awarded  to  remove  a  cause,  for  unreasonable  neglect  or 

delay.     1  Rob.  Prac.  192. 

This  day  came  A.  B.  by  his  attorney,  and  presented  a  peti- 
tion for  a  writ  of  certiorari  to  remove  hither  an  action  of , 

depending  in  &c.  between  the  said  A.  B.  plaintiff  and  C.  D. 
defendant,  which  petition  is  verified  by  oath ;  and  the  said  &c. 
{or,  it  being  shewn  &c.)  Whereupon,  it  appearing  that  the  said 
county  court  has  unreasonably  neglected  or  delayed  to  decide 
the  said  cause,  a  writ  of  certiorari  is  awarded  &c.  (as  before.) 

7.   Writ  of  certiorari  to  remove  a  cause.     1  Rob.  Prac.  192. 

The  commonwealth  of  Virginia  to  the  justices  of  our  court  of 
G.  county,  greeting :  For  certain  causes  moved  before  the  judge 
6 


^  Removal  of  cames. 

of  our  circuit  superior  court  of  law  and  chancery  for  &c.  we 
command  you  and  every  of  you,  that  you  or  one  of  you,  under 
your  or  one  of  your  seals,  the  record  and  proceedings  in  a  cer- 
tain action  of between  J.  H.  plaintiff  and  R.  A.  defendant, 

with  all  things  touching  the  same,  as  fully  and  wholly  as  the 
same  are  before  you  now  residing,  to  the  judge  of  our  said  cir- 
cuit superior  court,  at  &c.  on  the  first  day  of  the  next  term,  do 
send  and  certify  enclosed,  together  with  this  writ.     Witness  &c. 

8.  Order  made  in  county  court  upon  production  of  certiorari. 

The  plaintiffs  {or,  defendants)  by  their  attorney,  produced  a 
writ  of  certiorari,  commanding  the  justices  of  this  court,  or  any 
one  of  them,  to  send  and  certify  the  record  and  proceedings  in 
this  suit,  with  all  things  touching  the  same,  to  the  judge  of  the 
circuit  superior  court  of  law  and  chancery  for  this  county,  on 
the  first  day  of  the  next  term  :  Whereupon  it  is  ordered  that  the 
same  be  certified  accordingly. 

9.   Order  to  docket  cause  upon  return  of  certiorari. 

The  writ  of  certiorari  awarded  on  tuesday  last,  to  remove  hi- 
ther an  action  of  debt  depending  in  the  court  of  H.  county, 
wherein  W.  M.  is  plaintiff  and  C.  L.  is  defendant,  was  this  day 
returned  ;  and  J.  H.  M.  a  justice  of  the  peace  for  the  said  county, 
having,  in  pursuance  of  the  said  writ,  certified  and  sent  annexed 
thereto  a  transcript  of  the  record  and  proceedings  in  the  said 
action,  with  all  things  touching  the  same,  as  fully  and  wholly  as 
the  same  before  the  justices  of  the  said  county  are  residing :  It 
is  thereupon  ordered  that  the  said  cause  be  placed  upon  the 
docket  of  this  court,  for  a  trial  to  be  had  therein. 

10.  Procedendo  ad  judicium. 

The  commonwealth  of  Virginia  to  the  justices  of  our  court  of 
H.  county,  greeting :  Because  that,  in  rendering  judgment  on  a 
certain  writ  of  scire  facias  sued  out  of  the  said  county  court  by 
W.  R.  against  D.  R.  &c.  long  delay  hath  intervened,  to  the  great 
damage  of  the  said  W.  R.  as  from  his  complaint  our  judge  of 
our  circuit  superior  court  of  law  and  chancery  for  our  said 
county  has  been  informed :  We  command  you,  and  every  of 
j'ou,  that  on  the  said  writ  of  scire  facias,  with  all  the  celerity 
you  can,  you  proceed  to  judgment  according  to  law,  any  thing 
to  the  contrary  notwithstanding.     Witness  J.  R.  clerk  &c. 


Removal  of  causes.  43 

11.   Order  changing  venue,     1  Rob.  Prac.  193.     Boswell  v.  FlocJc- 
heart,  8  Leigh  364. 

On  the  motion  of  the  defendanfi)y  his  attorney,  and  for  good 
cause  shewn  to  the  court,  it  is  ordered  that  the  venue  in  this 
cause  be  changed  to  the  circuit  superior  court  of  law  and  chan- 
cery for  the  county  of  H. 

12.  Order  removing  cause  in  consequence  of  judge's  situation^ 
1  Rob.  Prac.  193.     Boswell  v.  FlocTcheart,  8  Leigh  364. 

The  judge  of  this  court  being  interested  in  this  cause  {or^  re- 
lated to  one  of  the  parties — or^  so  situated  as  to  render  it  impro- 
per, in  his  judgment,  for  him  to  preside  at  the  trial  of  this  cause) 
it  is  ordered  that  the  same  be  removed  to  the  circuit  superior 
court  of  law  and  chancery  for  the  county  of  C.  that  being  one 
of  the  courts  within  the  fifth,  an  adjoining  circuit,  and  the  most 
convenient  court  in  that  circuit. 

13.  Petition  for  removal  of  a  cause  from  state  court  to  court  (f 

United  States.     1  Rob.  Prac.  237. 

To  the  circuit  superior  court  of  law  and  chancery  for  the 
county  of  Henrico  and  city  of  Richmond. 

The  petition  of  C.  D.  respectfully  represents,  that  he  is  an 
alien,  and  a  suit  has  been  commenced  in  this  court  against  him 

by  A.  B.  {or,  that  he  is  a  citizen  of  the  state  of ,  and  a  suit 

has  been  commenced  against  him  in  this  court  by  A.  B.  a  citizen 
of  this  state)  and  the  matter  in  dispute  exceeds  the  sum  {or,  va- 
lue) of  five  hundred  dollars,  exclusive  of  costs.  He  now  prays 
that  the  said  cause  may  be  removed  for  trial  into  the  next  circuit 
court  of  the  United  States  for  the  eastern  district  of  Virginia,  and 
offers  to  give  good  and  sufficient  surety  for  his  entering  in  the 
said  court,  on  the  first  day  of  its  next  session,  copies  of  the  pro- 
cess against  him,  and  also  for  his  there  appearing,  and  entering 
special  bail  in  the  cause.* 

*  The  words  in  italics  are  to  be  omitted,  unless  special  bail  was  ori- 
ginally requisite  in  the  cause. 

14.  Bond  given  upon  removal  of  a  cause  from  state  court  to  court  of 
United  States.     1  Rob.  Prac.  237. 

Know  all  men  &c.  The  condition  of  the  above  obligation  is 
such,  that  whereas  a  suit  has  been  commenced  in  the  circuit  su- 
perior court  of  law  and  chancery  for  the  county  of  Henrico  and 


^  Removal  of  causes. 

city  of  Richmond  in  the  state  of  Virginia,  by  A.  B.  against  C. 
D.  the  matter  in  dispute  in  which  suit  exceeds  the  sum  {or,  va- 
lue) of  five  hundred  dollars,  exclusive  of  costs  ;  and  the  said  C. 
D.  at  the  time  of  entering  his  appearance  in  the  said  court,  filed 
a  petition  setting  forth  that  he  was  a  citizen  of  tlie  state  of  Ohio, 
and  the  said  A.  B.  a  citizen  of  the  said  state  of  Virginia,  and 
praying  for  the  removal  of  the  cause  for  trial  into  the  next  cir- 
cuit court  of  the  United  States  for  the  eastern  district  of  Virgi- 
nia: Now  if  the  said  C.  D.  shall  enter  in  the  said  circuit  court 
of  the  United  States,  on  the  first  day  of  its  next  session,  copies 
of  tH'e  process  against  him,  and  shall  there  ajypear  and  enter  siiecial 
hail  in  the  said  cause,*  then  the  above  obligation  is  to  be  void, 
otherwise  to  remain  in  full  force. 

*  The  words  in  italics  are  to  be  omitted,  unless  special  bail  was  ori- 
ginally requisite  in  the  cause. 

15.   Order  for  the  removal  of  a  cause  from  a  state,  court  to  a  court  of 
the  United  States.     1  Rob.  Prac.  237. 

This  day  came  the  defendant  by  his  attorney,  and  filed  a  pe- 
tition for  the  removal  of  this  cause  for  trial  into  the  next  circuit 
court  of  the  United  States  to  be  held  for  the  eastern  district  of 
Virginia,  which  petition  sets  forth  that  the  defendant  is  a  citizen 
of  the  state  of  Ohio,  and  the  plaintiff  a  citizen  of  this  state,  and 
that  the  matter  in  dispute  exceeds  the  sum  {or,  value)  of  five 
hundred  dollars,  exclusive  of  costs.  Whereupon,  it  appearing 
to  the  satisfaction  of  the  court  that  the  facts  set  forth  in  the  said 
petition  as  to  the  citizenship  of  the  parties  and  the  matter  in  dis- 
pute are  true,  and  E.  F.  having  executed  a  bond,  with  G.  H.  as 
his  surety,  for  entering  in  the  said  circuit  court  of  the  United 
States,  on  the  first  day  of  its  next  session,  copies  of  the  process 
against  him,  and  also  for  his  there  appearing,  and  entering  special 
bail  in  the  cause,*  the  court,  deeming  the  surety  good  and  suffi- 
cient, doth  accept  the  same,  and  will  proceed  no  farther  in  the 
cause. 

*  The  words  in  italics  will  of  course  be  omitted,  where  the  bond  does 
not  contain  this  provision. 


Depositions  of  witnesses.  4^ 


CHAPTER  VIII. 

DEPOSITIONS    OF    WITNESSES. 


1.  Affidavit  that  loitness  is  unable  to  attend  court.    1  Rob.  Prac.  194. 

A.  B.  maketh  oath  and  saith,  that  E.  F.  is  a  witness  for  him 
in  an  action  in  the  circuit  superior  court  of  law  and  chancery 
for  the  county  of  H.  wherein  he  is  plaintiff  and  C.  D.  is  defen- 
dant, and  that  the  said  witness  is  about  to  depart  out  of  the  li- 
mits of  this  commonwealth.  Or — and  that  the  said  witness,  he 
verily  believes,  by  reason  of  his  age  {or,  sickness)  will  be  una- 
ble to  attend  the  said  court. 

A  B. 

Sworn  to  by  the  said  A.  B  this day  of  ,  in  open 

court. 

J.  R.  clerk. 
Or:  Sworn  to  this day  of by  the  said  A.  B.  be- 
fore the  clerk  of  the  said  court,  in  his  office. 

J.  R.  clerk. 
Or :  Sworn  to  this day  of by  the  said  A.  B.  be- 
fore me,  a  justice  of  the  peace  for  the  county  of  H. 

G.  H. 

2.  Affidavit  where  there  is  a  single  laitness  to  a  material  point. 
1  Rob.  Prac.  194. 

After  describing  the  suit,  proceed  as  follows :  and  that  he  verily 
believes  his  claim,*  or  a  material  point  thereof,  depends  solely 
on  the  said  witness. 

*  If  the  witness  be  for  the  defendant,  the  suit  will  be  described  accord- 
ingly, and  the  word  defence  used  instead  of  claim. 

3.  Affidavit  where  witness  resides  out  of  the  commomcealth.     1  Rob. 

Prac.  194. 

After  describing  the  suit,  proceed  a^  follows :  and  that  the  said 

witness  resides  out  of  this  commonwealth,  in  the  state  of , 

and  is  now  in  that  state. 

Or:  and  that  the  said  witness  resides  in  a  foreign  country, 
to  wit,  at  &c. 


4ft  Depositions  of  witnesses. 

4.  Order  awarding  commission  to  take  depositions  de  bene  esse. 

On  the  motion  of  the  plaintiffs  by  their  attorney,  commissions 
are  awarded  them  to  examine  and  take  the  depositions  of  W. 
M.  &c.  witnesses  for  them  in  this  cause,  de  bene  esse ;  the  said 
plaintiffs  giving  the  defendants  reasonable  notice  of  the  times 
and  places  of  executing  the  said  commissions. 

5.  Order  awarding  commission  to  take  depositions  in  chief j  of  wit- 

nesses residing  in  another  state. 

On  &c.  (as  last)  witnesses  for  him  in  this  cause,  residing  in 

the  state  of ,  which  are  to  be  read  in  evidence  at  the 

trial  thereof;  the  said  plaintiff  giving  the  defendant  reasonable 
notice  of  the  times  and  places  of  executing  the  said  commis- 
sions. 

Where  the  opposite  party  consents  to  it,  the  following  words  may 
be  added:  And  by  consent  of  the  defendant,  the  said  commis- 
sions may  be  directed  to  any  two  justices  of  the  peace  of  the 
said  state,  or  a  notary  public  thereof. 

Or :  And  by  consent  of  the  defendant,  the  commission  to  exa- 
mine and  take  the  deposition  of  the  said  W.  M.  may  be  directed 
to  and  executed  by  A.  M.  &c.  gentlemen,  or  any  three  of  them, 
and  the  commission  to  examine  and  take  the  deposition  of  the 
said  N.  G.  may  be  directed  to  and  executed  by  W.  C.  &c.  gen- 
tlemen, or  any  three  of  them. 

6.  Commissions  awarded  both  parties  by  consent,  to  take  the  deposi- 

tions of  their  witnesses  in  the  state  generally,  de  bene  esse. 

By  consent  of  the  parties  by  their  attorneys,  commissions  are 
awarded  them  to  examine  and  take  the  depositions  of  their  wit- 
nesses residing  in  this  state,  de  bene  esse  ;  giving  each  other  rea- 
sonable notice  of  the  times  and  places  of  executing  the  same. 

7.  Commissions  awarded  both  parties  by  consent,  to  take  the  deposi- 
tions of  their  witnesses  out  of  the  states  without  naming  them. 

By  consent  of  the  parties  by  their  attorneys,  commissions  are 
awarded  them  to  examine  and  take  the  depositions  of  their  wit- 
nesses in  this  cause,  which  are  to  be  read  in  evidence  at  the  trial 
thereof;  giving  each  other  reasonable  notice  of  the  times  and 
places  of  executing  the  same. 


Depositions  of  witnesses.  47 

8.  Commission  to  take  deposition  de  bene  esse.     1  Rob.  Prac.  194, 

5,  6.     Sess.  Acts  1833-4,  p.  75.  ch.  61.  62.  <^  2. 

The  commonwealth  of  Virginia  to  A.  B.gent.  justice  of  the 
county  of  H.  {or,  to  A.  B.  a  notary  public  for  the  city  of  R. — 
or,  to  A.  B.  a  commissioner  appointed  by  the  circuit  superior 
court  of  law  and  chancery  for  the  county  of  H.  in  this  com- 
monwealth, for  the  taking  of  depositions.)  Know  ye  that  we, 
trusting  to  your  fidelity  and  provident  circumspection  in  dili- 
gently examining  E.  F.  a  witness  de  bene  esse  on  behalf  of  A. 
B.  in  a  suit  now  depending  in  our  circuit  superior  court  of  law 
and  chancery  for  the  county  of  H.  between  the  said  A.  B.  plain- 
tiff and  C.  D.  defendant,  command  you,  that  at  such  certain 
day  and  place  as  you  shall  appoint,  the  witness  aforesaid  before 
you  you  cause  to  come,  and  him  diligently  examine  on  the  holy 
evangelists  of  almighty  God,  and  his  examination  into  our  said 
court,  without  delay,  you  send  and  certify  enclosed. 

9.  Commission  to  take  deposition  of  witness  out  of  the  commonwealths 

1  Rob.  Prac.  196. 

The  commonwealth  &c.  to  any  two  justices  of  the  peace  of 

the  state  {or,  territory — oi;  district)  of ,  who  will  certify 

themselves  to  be  such.  Know  ye  that  we,  trusting  to  your  fide- 
lity and  provident  circumspection  in  diligently  examining  E.  F, 
a  witness  on  behalf  of  A.  B.  in  a  suit  &c.  require  you,  that  at 
&c.  you  assemble  yourselves,  and  the  witness  aforesaid  before 
you  you  cause  to  come  &c.  (as  before.) 

10.  Notice  of  application  for  commission  to  take  depositions  in  a 

foreign  country.     1  Rob.  Prac.  196. 

To  mr.  C.  D. — Sir,    Take  notice,  that  on  the day  of  the 

next  term  of  the  circuit  superior  court  of  law  and  chancery  for 
the  county  of  M.  I  shall  apply  to  the  said  court  for  a  commis- 
sion in  a  suit  depending  therein,  in  which  I  am  plaintiff  and  you 
are  defendant,  to  be  directed  to  certain  commissioners,  not  ex- 
ceeding five,  to  take  the  depositions  of  witnesses  in  the  said 
suit,  residing  in  the  city  of  London.  If  you  desire  that  the  com- 
missioners should  be  nominated  and  agreed  upon  by  the  parties 
litigant,  you  will  please  attend  on  the  day  aforesaid.  Should 
you  not  attend  for  the  purpose,  I  shall  at  that  time  nominate  the 

commissioners  myself.     Given  under  my  hand  this  day 

of . 


48  Depositions  of  witnesses. 

11.  Commission  awarded  to  take  depositions  in  a  foreign  country. 
1  Rob.  Prac.  196,  7. 

R.  S.  &c.  are  nominated  and  agreed  upon  by  the  parties,  to 
take  the  depositions  of  their  witnesses  in  this  cause,  residing  in 
the  city  of  Loiidon;  and  the  court  doth  direct  a  commission  for 
that  purpose  to  issue  from  the  clerk's  office,  directed  to  the  said 
commissioners,  any  three  of  whom  may  proceed  to  execute  the 
same.  But  either  party  having  witnesses  examined  under  the 
said  commission,  is  to  give  to  the  other  reasonable  notice  of  the 
time  and  place  of  taking  the  depositions. 

Or: 

The  plaintiff  having  made  affidavit  that  A.  B.  a  witness  for 
him,  resides  in  a  foreign  country,  to  wit,  in  the  city  of  London, 
and  having  given  the  defendant  notice  according  to  law  of  his 
intention  to  apply  for  a  commission,  so  that  commissioners 
might  be  nominated  and  agreed  upon  by  the  parties,  and  the 
defendant  not  attending  for  the  purpose,  the  plaintiff"  himself 
nominated  the  following  as  commissioners,  to  wit :  (here  name 
them.)  And  the  court,  on  the  motion  of  the  plaintiff",  doth  di- 
rect a  commission  to  issue  from  the  clerk's  office,  directed  to 
the  commissioners  so  nominated  by  the  plaintiff",  any  three  of 
whom  may  proceed  to  execute  the  commission.  But  the  plain- 
tiff" is  to  give  the  defendant  reasonable  notice  of  the  time  and 
place  of  taking  the  deposition. 

12.  Notice  to  take  depositions.     1  Rob.  Prac.  197. 

To  mr.  B.  S. — Sir,  Take  notice,  that  on  the  first  day  of  Sep- 
tember next,  between  the  hours  of  nine  in  the  forenoon  and  six 
in  the  afternoon  of  that  day,  at  the  counting  house  in  the  city  of 
L.  in  the  kingdom  of  Great  Britain,  known  as  the  counting 
house  of  /.  G.  and  company,  we  shall  proceed  to  take  the  depo- 
sitions of  A.  B.  and  C.  {or,  of  certain  witnesses)  to  be  used  as 
evidence  for  us  in  a  suit  now  pending  in  &c.  wherein  we,  J.  G. 
and  W.  G.  merchants  and  partners  under  the  firm  of  J.  G.  and 
company,  are  plaintiff's,  and  you  the  said  B.  S.  are  defendant ; 
and  if,  from  any  cause,  the  taking  of  the  said  depositions  shall 
not  be  commenced,  or,  being  commenced,  should  not  be  com- 
pleted on  that  day,  the  taking  of  the  same  will  be  adjourned 
from  time  to  time  until  the  said  depositions  shall  be  completed. 
Given  under  our  hands  this day  of . 


Depositio7is  of  witnesses.  49 

13.  Notice  to  7ionresident  party.     1  Rob.  Prac.  197,  8. 

To  mr.  A.  B. — Sir,  Having  obtained  a  commission  to  take 
the  deposition  of  E.  F.  a  witness  for  me  in  a  suit  depending  in 
&c.  wherein  you  are  plaintiff  and  I  am  defendant,  and  you  not 
residing  within  the  commonwealth,  and  having  no  attorney  in 
fact  within  the  same,  to  whom  notice  of  the  time  and  place  of 
taking  the  said  deposition  can  be  given,  I  now  publish,  for  your 
information,  that  the  said  witness  will  be  examined  on  &c.  be- 
tween the  hours  &c.  at  &c.  and  his  deposition  will  be  then  and 
there  taken  in  the  suit  aforesaid,  for  the  purpose  of  being  read 
as  evidence  therein.  If  however,  from  any  cause  not  foreseen, 
ihe  taking  &c.  (as  last.) 

14.  Afidavit  of  service  or   jmblication  of  notice.     1  Rob.    Prac. 

197,  8. 

This  must  of  course  vary  according  to  circumstances.  Where  a 
copy  of  the  notice  is  delivered  to  the  party  in  person,  the  affidavit  will 
be  as  follows : 

"  H.  county,  to  wit :    This  day  G.  H.  who  is  upwards  of years 

of  age,  personally  appeared  before  me,  a  justice  of  the  peace  for  the 
said  county,  and  made  oath  {or,  solemn  affirmation)  that  he  did,  on  the 

day  of ,  deliver  to  the  above  named  A.  B.  a  true  copy  of 

the  above  written  notice.  Given  under  my  hand  this day  of ." 

Where  the  notice  is  delivered  to  any  other  than  the  party,  or  is  left  at 
the  party's  place  of  residence,  the  affidavit  must  contain  such  facts  as 
are  stated  in  the  return  of  a  sheriff,  when  he  serves  a  scire  facias  in 
that  way ;  as  to  which,  see  ante,  chapter  VI.  No.  9.  And  it  may  be 
well  to  observe  that  although,  in  the  case  of  a  scire  facias,  a  copy  may 
be  left  with  the  wife  of  the  defendant,  yet  in  the  case  of  a  notice  upon 
any  other  legal  occasion,  it  is  not  sufficient  to  deliver  the  same  to  the 
wife,  unless  it  appear  also  that  she  is  a  free  white  person  above  the  age 
of  16  years. 

Where  the  notice  is  published  in  a  public  newspaper,  the  affidavit  may 
be — "that  the  above  notice  has  been  published  four  weeks  successively 

in   the  ,   a  newspaper  printed  within  this  commonwealth ;   and 

that  the  four  weeks  for  which  the  said  notice  was  so  published,  were 
prior  to  the  time  mentioned  therein  for  the  examination  of  the  witness." 

15.  Return  of  a  commission  for  taking  depositions.     1  Rob.  Prac. 

198,  9.  200.  201.    Lyjich  v.  Thomas,  3  Leigh  682. 

We  J.  K.  and  L.  M.  do  certify  that  we  are  justices  of  the 

peace  for  the  county  of in  the  state  of .     And 

we  further  certify  that  pursuant  to  the  commission  hereunto  an- 
nexed, empowering  us  to  examine  E.  F.  and  G.  H.  witnesses 
on  behalf  of  A.  B.  in  a  suit  now  depending  in  the  circuit  supe- 
7 


50  Depositions  of  tvitnesses. 

rior  court  of  law  and  chancery  for  the  county  of  H.  in  the  state 
of  Virginia,  between  the  said  A.  B.  plaintiff  and  C.  D.  defen- 
dant, we  assembled  ourselves  on  the  day,  at  the  place,  and  be- 
tween the  hours  mentioned  in  the  notice  hereunto  annexed,  that 

is  to  say,  on  the day  of ,  at  ,  in  the  city  of 

,  between  the  hours  of in  the  forenoon  and in 

the  afternoon,  and  neither  of  the  witnesses  aforesaid  then  came 
before  us  :  Wherefore  we  then  and  there  adjourned  the  exami- 
nation of  the  said  witnesses  until  the day  of ,  then 

to  be  taken  at  the  same   place  and  between  the  same  hours. 

Signed  by  us  on  the  said day  of . 

J.  K.     )  Justices  of  the 
L.  M.  )  peace. 

We  the  said  J.  K.  and  L.  M.  justices  of  the  peace  as  afore- 
said for  the   said  county  of in   the  state  of ,  do 

further  certify,  that  we  again   assembled  on  the  said day 

of ,  at  &c.  between  the  hours  of  &c.  and  the  witnesses 

aforesaid  then  and  there  came  before  us,  and  we  then  and  there 
proceeded  diligently  to  examine   them  on  the  holy  evangelists 

of  almighty  God,  in  the  presence  of attorney  for  the 

plaintiff^  and attorney  for  the  defendant.     The  said  E. 

F.  having  been  first  duly  sworn,  deposeth  and  saith  as  follows, 
that  is  to  say :  (Here  state  what  the  witness  says,  and  then 
state  any  questions  asked  him  by  either  party,  and  his  answers 
thereto.) 

Question  by  plaintiff's  attorney. . 

Answer. . 

Question  by  defendant's  attorney. . 

Answer. . 

And  further  this  deponent  saith  not. 

(Signed)         E.  F. 

And  the  said  G.  H.  having  been  first  duly  sworn,  deposeth 
and  saith  as  follows,  that  is  to  say,  &c.  (as  before,) 

(Signed)         G.  H. 

Which  examinations  being  completed,  we  now  send  and  cer- 
tify the  same  into  the  said  circuit  superior  court  of  law  and 
chancery  for  the  county  of  H.  in  the  state  of  Virginia. 

In  testimony  of  all  which,  we  hereunto  subscribe  our  names 

and  affix  our  seals,   on   the  said  — '■ —  day  of ,  at  the 

place  and  between  the  hours  before  specified. 

.7.  K.  [seal.] 
L.  M.  [seal.] 

The  depositions  are  then  to  be  enclosed,  and  the  envelope  sealed,  and 
directed  as  follows:  "To  the  clerk  of  the  circuit  superior  court  oflaw 
and  chancery  for  the  county  of  //.  in  the  state  of  Virginia." 


Attendance  of  uit7icss€s  in  person.  51 

CHAPTER  IX. 

ATTENDANCE  OF  WITNESSES  IN  PERSON. 


1.  Suhyccna  for  a  witness  to  attend  court.     1  Rob.  Prac.  203. 

We  command  you  that  you  summon  E.  F.  to  appear  before 
&c.  at  &c.  on  &c.  to  testify  and  the  truth  to  say  on  behalf  of  A. 
B.  in  a  certain  matter  of  controversy  in  our  said  court  depend- 
ing and  undetermined  between  the  said  A.  B.  plaintiff  and  C. 
D.  defendant.  And  this  he  shall  in  no  wise  omit,  under  the  pe- 
nalty of  £  100.     And  have  then  &c. 

2.  Suhpcena  for  witness  to  attend  arbitrators.     1  Rob.  Prac.  203. 

to  appear  at  the  house  of  mrs.  S.  B.  in  the  said  county 

of  H.  on  the  third  day  of  July  next,  to  give  evidence  on  behalf 
of  T.  G.  before  the  referees  to  whose  determination  the  matters 
in  difference  in  an  action  at  law  depending  in  our  circuit  supe- 
rior court  of  law  and  chancery  for  the  said  county  of  H.  be- 
tween the  said  T.  G.  plaintiff  and  J.  S.  defendant,  have,  by 
an  order  of  the  said  court,  been  referred.  And  this  he  shall  in 
no  wise  omit  &c. 

3.  Subpoena' for  witness  to  attend  on  an  order  of  survey.     1  Rob. 

Prac.  203. 

upon  the  lands  in  controversy  in  a  suit  now  depending 


in  &c.  between  &c.  on  the  first  day  of  June  next,  if  fair,  if  not, 
the  next  fair  day,  then  and  there  to  testify  and  the  truth  to  say 
in  behalf  of  the  said  C.  D.  before  the  surveyor  of  the  said 
county,  acting  under  the  order  of  survey  in  the  said  suit.  And 
this  he  shall  in  no  wise  omit  &c. 

4.   Order  awarding  suhpcena  duces  tecum.     1  Rob.  Prac.  203,  4. 

On  the  motion  of  the  plaintiff  by  his  attorney,  it  is  ordered 
that  the  clerk  of  the  court  of  H.  county  be  summoned  to  attend 
here  on  the  7lh  day  of  the  present  term,  with  the  original  bond 
now  filed  in  his  office,  as  it  is  said,  in  a  suit  lately  depending  in 
the  said  court  between  A.  B.  plaintiff  and  E.  F.  defendant. 


52  Attendance  of  witnesses  in  'person, 

5.  Writ  of  subpoena  duces  tecum.     1  Rob.  Prac.  203,  4. 

We  command  you  that  you  summon  W.  M.  clerk  of  the  court 
of  our  said  county,  to  appear  before  the  judge  of  our  circuit 
superior  court  of  law  and  chancery  for  the  said  county,  now- 
sitting,  at  &c.  on  the  seventh  day  of  the  present  term,  with  the 
original  bond  now  filed  in  his  office,  as  it  is  said,  in  a  suit  lately 
depending  in  the  said  court  between  A.  B.  plaintiff  and  E.  F. 
defendant,  then  and  there  to  testify  and  the  truth  to  say  on  be- 
half of  &c.  (as  in  No.  1.) 

6.  Order  awarding  writ  of  habeas  corpus  ad  testificandum. 

On  the  motion  of  F.  G.  a  writ  of  habeas  corpus  is  awarded, 
to  the  sheriff^^"  of  H.  county  to  be  directed,  commanding  him  to 
bring  the  body  of  D.  M.  who  is  confined  as  a  debtor  in  the  jail 
of  the  said  county,  before  this  court,  to  give  testimony  on  behalf 
of  the  said  J^.  G.  at  the  suit  of  W.  B.  W.  in  a  cause  depending 
in  this  court;  returnable  here  immediately. 

7.   Writ  of  habeas  corpus  ad  testificandum. 

We  command  you  that  the  body  of  Z.  R.  in  our  prison  under 
your  custody,  as  it  is  said,  detained,  under  safe  and  secure  con- 
duct, by  whatsoever  name  the  said  Z.  R.  may  be  called  in  the 
same,  you  have  before  the  judge  of  our  circuit  superior  court 
of  law  and  chancery  for  the  county  of  H.  now  sitting  at  the  ca- 
pitol  in  the  city  of  Richmond,  immediately  after  the  receipt  of 
this  writ,  then  and  there  to  testify  and  the  truth  to  say  in  behalf 
of  ^.  B.  in  a  certain  matter  of  controversy  in  our  said  court  be- 
fore the  said  judge  depending  and  undetermined,  between  the 
said  A.  B.  plaintiff  and  C.  D.  defendant ;  and  immediately  after 
the  said  Z.  R.  shall  have  given  his  testimony  before  the  said 
judge,  that  you  return  him  the  said  Z.  R.  to  our  said  prison, 
under  safe  and  secure  conduct.     And  have  then  &c. 

8.   Witness  brought  up  by  habeas  corpus  remanded  after  giving 

testimony. 

Ordered  that  D.  M.  who  was  brought  here  this  day  by  the 
sheriff  of  H.  county  by  virtue  of  a  writ  of  habeas  corpus,  to  give 
evidence  on  behalf  of  F.  G.  at  the  suit  of  W.  B.  W.  be  re- 
manded in  custody  of  the  said  sheriff  to  the  jail  of  the  said 
county. 


Attendance  of  witnesses  in  person.  53 

9.  Entry  of  rule  upon  a  sheriff  for  not  returning  a  subpoena.  1  Rob. 

Prac.  253. 

It  appearing  that  in  this  cause  a  writ  of  subpoena  was  issued 
by  the  clerk,  directed  to  the  sheriff  of  H.  county,  commanding 
him  to  summon  certain  witnesses  on   behalf  of  the  plaintiff  to 

appear  on  the day  of  this  term,  and  to  have  here  on  that 

day  the  said  writ ;  and  it  further  appearing  that  the  said  writ 
was  delivered  in  due  time  to  the  said  sheriff,  and  that  he  has 
failed  to  return  the  same:  On  the  motion  of  the  said  plaintiff, 
the  court  doth  order  that  A.  B.  sheriff  of  the  said  county  of  H. 
be  summoned  to  appear  here  on  the  first  day  of  the  next  term, 
to  shew  cause,  if  any  he  can,  why  an  attachment  should  not  be 
issued  against  him  for  his  said  contempt. 

10.  Summons  against  the  sheriff  under  the  preceding  order.  1  Rob. 

Prac.  253. 

The  commonwealth  of  Virginia  to  the  coroner  of  the  county 
of  H.  We  command  you  that  you  summon  A.  B.  sheriff  of  the 
said  county,  to  appear  before  the  judge  of  our  circuit  superior 
court  of  law  and  chancery  for  the  county  of  C.  at  the  court- 
house, on  the  first  day  of  the  next  term,  to  shew  cause,  if  any 
he  can,  why  an  attachment  should  not  be  issued  against  him  for 
his  contempt  in  failing  to  return  a  writ  of  subpoena  issued  by  the 
clerk  of  our  said  court,  in  a  suit  between  C.  D.  plaintiff  and  E. 
F.  defendant,  and  directed  to  the  said  sheriff,  whereby  he  was 
commanded  to  summon  certain  witnesses  on  behalf  of  the  said 

plaintiff  to  appear  before  the  said  court  on  the day  of  the 

last  term,  and  to  have  then  there  that  writ;  which  writ,  it  ap- 
peared to  our  said  court,  was  delivered  to  the  said  sheriff  in  due 
time.     And  have  &c.     Witness  &c. 

11.  Entry  of  rule  against  a  witness  for  not  attending  in  obedience  to 
a  subpoena.     1  Rob.  Prac.  253,  4. 

J.  W.  who  was  summoned  to  appear  here  on  this  day  as  a 
witness  on  behalf  of  S.  H.  at  the  suit  of  S.  M.  was  solemnly 
called,  but  came  not:  whereupon,  on  the  motion  of  the  said  S. 
H.  it  is  ordered  that  the  said  J.  W.  be  summoned  to  appear  here 
on  the  first  day  of  the  next  term,  to  shew  cause,  if  any  he  can, 
why  he  should  not  be  fined  (or,  why  an  attachment  should  not 
be  issued  against  him)  for  his  said  contempt. 


64  Attendance  of  witnesses  in  'person. 

12.  Summons  against  witness  under  the  preceding  order.     1  Rob. 

Prac.  253,  4. 

We  command  you  that  you  summon  E.  F.  to  appear  &c.  to 
shew  cause,  if  any  he  can,  why  he  should  not  be  fined  (or,  why 
an  attachment  should  not  be  issued  against  him)  for  a  certain 
contempt  by  him  to  us  offered  in  failing  to  attend  the  said  court 
at  the  last  term,  as  a  witness  on  behalf  of  A.  B.  in  a  certain 
matter  &c.  between  the  said  A.  B.  plaintiff  and  C.  D.  defen- 
dant, in  obedience  to  a  subpoena  issued  from  the  said  court,  and 
duly  executed  upon  him  the  said  E.  F.     And  have  then  &c. 

13.  Rule  against  a  witness  discharged.     1  Rob.  Prac.  253,  4. 

J.  W.  against  whom  a  rule  was  made  at  the  last  term  for 
failing  to  attend  as  a  witness  on  behalf  of  S.  H.  at  the  suit  of 
S.  M.  shewing  a  reasonable  excuse  for  such  failure,  the  said 
rule,  on  his  motion,  is  now  discharged. 

14.   Witness  fined  for  his  failure  to  attend.     1  Rob.  Prac.  253,  4. 

D.  H.  who  was  summoned  to  appear  here  to  shew  cause,  if 
any  he  could,  why  he  should  not  be  fined  for  his  contempt  in 
failing  to  attend  at  the  last  term  as  a  witness  on  behalf  of  J.  B. 
against  R.  R.  was  this  day  solemnly  called,  but  came  not  (or^ 
this  day  appeared,  but  failed  to  shew  sufficient  cause):  Where- 
fore, on  the  motion  of  the  said  J.  B.  it  is  considered  by  the  court 
that  the  said  D.  H.  for  his  said  contempt,  be  fined  sixteen  dol- 
lars to  the  use  of  the  said  J.  B. 

15.  Attachment  awarded  against  a  witness  for  contempt  in  not 
attending.     1  Rob.  Prac.  254. 

D.  H.  who  was  summoned  to  appear  here  to  shew  cause,  if 
any  he  could,  why  an  attachment  should  not  be  issued  against 
him  for  his  contempt  in  failing  to  attend  at  the  last  term  as  a 
witness  on  behalf  of  J.  B.  against  R.  R.  was  this  day  solemnly 
called,  but  came  not :  whereupon,  on  the  motion  of  the  said  J. 
B.  the  rule  aforesaid  against  the  said  D.  H.  is  made  absolute, 
and  an  attachment  is  accordingly  awarded  against  him,  return- 
able here  on  the  first  day  of  the  next  term. 


^^. 


X 


Attendance  of  witnesses  in  person.  56 

16.  Attachment  against  witness  for  contempt  in  not  attending. 
1  Rob.  Prac.  254. 

We  command  you  that  you  attach  E.  F.  so  that  you  have  his 
body  before  &c.  at  &c.  on  &c.  to  answer  us  as  well  of  a  certain 
contempt  by  him  to  us  offered  in  failing  to  attend  the  said  court, 

at term,  as  a  witness  on  behalf  of  A.  B.  Sec.  (as  in  the 

summons,)  as  upon  those  things  which  to  him  shall  be  then  and 
there  objected  ;  and  further,  to  do  and  receive  what  our  said 
court  shall  in  that  part  consider.     And  have  then  &c. 

17.   Order  committing  to  prison  a  witness  who  refuses  to  give  evidence. 
1  Rob.  Prac.  254. 

A.  B.  who  was  summoned  and  is  attending  as  a  witness  on 
behalf  of  C.  D.  against  E.  F.  having  refused  to  give  evidence 
in  the  said  cause,  the  court  doth  order  that  he  be  committed  to 
prison,  there  to  remain  without  bail  or  mainprize  until  he  shall 
give  such  evidence. 

18.   Order  in  favour  of  witness  for  his  attendance. 

A.  B.  who  was  summoned  to  appear  at  this  court  for  the  pur- 
pose of  giving  testimony  on  behalf  of  C.  D.  in  his  action  against 
E.  F.  having  accordingly  attended  four  days,  it  is  ordered  that 
the  said  C.  D.  pay  him  S2.12  cents  for  his  said  attendance,  and 

cents  for  his  ferriages ;  and  the  said  A.  B.  residing  in  and 

being  summoned  out  of  another  county,  it  is  further  ordered 
that  the  said  C.  D.  pay  him  $4.00  for  travelHng  fifty  miles  to 
the  place  of  attendance,  and  the  same  distance  in  returning. 

19.  Attachment  on  order  for  attendance. 

We  command  you  that  you  attach  C.  D.  so  that  you  have  his 
body  before  our  justices  of  our  said  county  court,  at  the  court- 
house, on  the  first  monday  in  this  month,  to  answer  us  of  and 
concerning  those  things  which  shall  be  then  and  there  objected 
against  him,  and  to  do  and  receive  what  our  said  court  shall  in 
this  part  consider.     And  have  &c. 

Endorse — For  not  paying  unto  A.  B.  $  8.75  for  his  attendance 

at ,  and  his  travelling  and  ferriages,  as  a  witness  for  the 

said  C.  D.  against  E.  F. 

20.  Summons  against  an  executor  upon  order  for  attendance. 

Summon  A.  B.  executor  of  C.  D.  deceased,  to  appear  &c. 
in  November  next,  to  shew  cause,  if  any  he  can,  why  an  at- 


56  Attendance  of  witnesses  in  person. 

tachment  should  not  issue  against  him,  for  that  whereas,  on  the 
2d  day  of  August  1786,  E.  F.  obtained  an  order  of  our  said 
court  that  the  said  C.  D.  should  pay  to  the  said  E.  F.  $2.12, 
for  four  days  attendance  in  a  certain  suit  then  and  there  de- 
pending between  the  said  C.  D.  plaintiff  and  G.  H.  defendant, 
which  costs,  amounting  in  the  whole  to  $2.12,  the  said  testator 
in  his  lifetime  did  not  pay,  and  the  said  A.  B.  since  his  death 
hath  not  paid.     And  this  &c. 


Discovery  from  a  parly.  67 


CHAPTER  X. 

DISCOVERY    FROM    A    PARTY. 


1.  Interrogatories  to  a  party  to  obtain  a  discovery  from  him.    1  Rob. 
Prac.  242.     M'Farland  v.  Hunter,  8  Leigh  489. 

In  ihe  circuit  superior  court  of  law  and  chancery  for  the  county 
of  Htnrico  and  city  of  Richmond. 

Between  A.  B.  plaintiff  and  C.  D.  defendant :  In  an  action 
of  debt. 

The  defendant,  wishing  a  discovery  from  the  plaintiff,  to  be 
used  in  evidence  at  the  trial  of  this  action,  propounds  the  follow- 
ing interrogatories  to  the  said  plaintiff,  to  wit :  1.  &c.  (After  wri- 
ting out  the  interrogatories,  conclude  as  follows :)  And  the  said 
defendant  calls  upon  the  plaintiff  to  answer  the  said  interroga- 
tories in  solemn  form,  on  his  oath  or  affirmation.     Dated  this 

day  of . 

,  attorney  for  the  defendant. 

Affidavit. 

C.  D.  the  defendant  above  named,  maketh  oath  and  saith,  that 
&c.  (Here  state  the  facts  of  the  case  accurately,  so  that  the  court 
may  deduce  from  those  facts  the  conclusion  that  answers  to  the  in- 
terrogatories will  be  material  evidence  in  the  cause,  and  that 
the  interrogatories  themselves  are  pertinent,  and  such  as  the  ad- 
verse party  would  be  bound  to  answer  unto  upon  a  bill  of  dis- 
covery in  a  court  of  chancery.) 

(Signed)     C.  D. 

Sworn  to  by  the  above  named  C.  D.  this day  of , 

before  me,  a  justice  of  the  peace  for  the  county  of  H. 

2.  Entry  of  interrogatories  being  filed,  and  order  thereupon. 
1  Rob.  Prac.  242. 

The  defendant,  wishing  a  discovery  from  the  plaintiff,  to  be 
used  in  evidence  at  the  trial  of  this  action,  this  day  filed  written 
interrogatories  to  the  plaintiff,  which  he  calls  upon  the  said  plain- 
tiff to  answer  in  solemn  form,  on  his  oath  or  affirmation;  and  it 
appearing  to  the  court,  by  the  affidavit  of  the  defendant,  that 
8 


68  Discovery  from  a  party. 

answers  to  the  said  interrogatories  will  be  material  evidence  in 
the  cause,  and  that  the  interrogatories  themselves  are  pertinent, 
and  such  as  the  plaintiff  would  be  bound  to  answer  unto  upon 
a  bill  of  discovery  in  a  court  of  chancery,  the  court  allows  the 
said  interrogatories,  and  requires  the  plaintiff  to  answer  the  same 
in  writing,  and  in  solemn  form,  on  his  oath  or  aftirmation. 

3.  Affidavit  to  obtain  the  discovery  (tnd  production  of  a  urriting  in 
the  possession  of  the  adverse  party.     1  Rob.  Prac.  244. 

In  &c.     Between  &c. 

C.  D.  the  defendant  above  named,  maketh  oath  and  saith,  that 
at  the  time  the  articles  of  agreement  mentioned  in  the  declara- 
tion were  entered  into,  the  plaintiffs  executed  another  writing, 
whereby  they  acknowledged  that  their  whole  claim  against  this 
defendant  under  the  said  articles  was  for  the  amount  of  an  ob- 
ligation of  this  defendant  for  $  6000,  which  they  held.  And  the 
said  defendant  farther  makelh  oath,  that  according  to  the  tenor 
of  the  obligation  so  held  by  the  plaintiffs,  this  defendant  was 
only  to  pay  the  said  sum  of  $  6000  when  the  profits  of  his  inte- 
rest in  the  concern  mentioned  in  the  said  articles  might  be  worth 
that  sum  ;  and  the  said  obligation  will  therefore  be  material  evi- 
dence for  the  defendant,  touching  the  matters  in  controversy  in 
the  said  action.  And  the  said  defendant  farther  maketh  oath, 
that  the  said  obligation  was  in  the  possession  of  the  plaintiffs,  or 
of  one  of  them,  and  he  verily  believes  the  same  is  still  in  their 
possession,  or  in  the  possession  of  one  of  them.  And  the  said 
defendant  farther  maketh  oath,  that  he  hath  no  means  of  proving 
the  contents  of  the  said  obligation,  but  by  the  discovery  and  pro- 
duction of  the  same  by  the  plaintiffs. 

(Signed)     C.  D. 

Sworn  to  by  the  above  named  C.  D.  this day  of-  -, 

before  me,  a  justice  of  the  peace  for  the  county  of  H. 

4.  Entry  of  afidavit  being  fled,  and  order  thereupon.     1  Rob. 

Prac.  244. 

The  defendant  this  day  filed  an  affidavit  in  the  following 
words  :  (Here  insert  the  same.)  Whereupon  the  court  doth  or- 
der the  plaintiffs  to  answer  and  say,  upon  their  oaths  or  solemn 
affirmations,  whether  they  have  in  their  possession  any  such  ob- 
ligation as  that  specified  in  the  said  affidavit,  or  any  of  the  like 
import,  and  if  any  such  they  have  in  their  possession,  to  produce 
the  same. 


Pleas  in  bar  and  other  proceedings  till  issue.  59 

CHAPTER  XL 

PLEAS    IN    BAR,    AXD    PROCEEDINGS    THEREON    TO    ISSUE    JOINED. 


1.   General  rules. 


The  end  of  all  pleading  is  to  attain  certainty  and  prevent  surprise. 
Hence  it  is  a  fundamental  rule  that  the  issue  between  the  parties  shall 
present  a  single,  individual,  simple  point.  To  this  point  the  evidence 
must  be  confined  ;  and  to  this  point  the  verdict  must  respond.  Carr,  J. 
in  Boiling  v.  Mayor  Sfc.  of  Petersburg,  3  Rand.  578. 

Every  plea  or  replication  should  be  in  itself  a  complete  bar,  or  an- 
swer to  the  bar.  The  matter  of  one  plea  or  replication  cannot  be  con- 
sidered as  incorporated  with  another.  Opinion  of  the  court  in  Henry 
V.  Stone,  2  Rand.  464. 

2.  Rules  as  to  pleas  concluding  to  the  country. 

Every  plea  which  amounts  to  a  negation  of  the  existence  of  the  cause 
of  action  set  out,  must  conclude  to  the  country.  If  it  confesses  and 
avoids,  it  should  conclude  with  a  verification.  Carr,  J.  in  Cleaton  v. 
Chamhliss,  6  Rand.  91. 

3.  Plea  of  non  assumpsit.     1  Rob.  Prac.  210,  11. 

In  the  circuit  superior  court  of  law  and  chancery  for  the  county 
of  H. — C.  D.  ads  A.  B.  And  the  said  C.  D.*  by  his  attorney 
comes  and  defends  the  wrong  and  injury,  when  &c.  and  saith, 
that  Aet  did  not  undertake  or  promise  in  manner  and  form  as 
the  said  A.  B.  hath  complained,  and  of  this  he  puts  himself 
upon  the  country. 

*  If  the  defendant  be  an  executor  or  administrator,  call  him  in  the 
caption  "  C.  D.  executor  &-c."  or,  "  administrator  d^c."  and  insert  here 
the  words  "  executor  (or,  administrator)  as  aforesaid." 

+  If  the  defendant  be  an  executor  or  administrator,  instead  of  he,  say 
"  the  said  E.  F.  deceased,  in  his  lifetime." 

Another,  by  a  surviving  partner. 

that  the  said  defendant  and  the  said  T.  M.  merchants 

and  partners  as  aforesaid,  did  not,  in  the  lifetime  of  the  said  T. 
M.  undertake  or  promise  in  manner  and  form  as  the  plaintiffs 


60  Pleas  in  har  and  other  proceedings  till  issue. 

have  complained  in  the  first,  second  and  fourth  counts  of  their 
declaration,  and  that  the  said  defendant  did  not  himself  assume 
in  manner  and  form  as  the  plaintiffs  have  complained  in  the 
third  and  fifth  counts  of  the  said  declaration ;  and  of  this  he 
puts  himself  upon  the  country. 

4.  Plea  of  nil  debet.     1  Rob.  Prac.  207. 

that  he  does  not  ov^'e  the  said  sum  of  money  (or,  the  debt 

and  interest — or,  the  principal,  interest  and  charges  of  protest) 
in  the  declaration  demanded,  or  any  part  thereof,  as  the  said  A. 
B.  has  complained  ;  and  of  this  &c.  (as  last.) 

5.  Affidavit  denying  execution  of  writing  on  which  action  is  brought. 
1  Rob.  Prac.  207,  8. 

In  the  circuit  superior  court  of  law  and  chancery  for  the  county 
of  H.  and  city  of  R.     May  term  1840. 
C.  D.  ads  A.  B.     Action  of  debt. 

The  said  C.  D.  maketh  oath  and  saith,  that  the  note  upon 
which  the  said  action  is  brought  was  not  made  or  signed  by  him. 

(Signed)     C.  D. 
Or: 
E.  F.  administrator  of  C.  D.  ads  A.  B.     The  said  E.  F.  ma- 
keth oath  and  saith,  that  he  hath  good  cause  to  believe,  and  does 
believe,  that  the  note  upon  which  the  said  action  is  brought  was 
not  made  or  signed  by  the  said  C.  D. 

(Signed)     E.  F. 

Sworn  to  by  the  said before  me,  a  justice  of  the  peace 

for  the  county  of  H.  this day  of . 

Note.  By  a  statute  passed  March  19.  1839,  it  is  enacted  "that  in  all 
actions  which  may  be  hereafter  commenced  in  the  names  of  any  persons 
composing  a  copartnership,  and  the  names  of  the  several  persons  consti- 
tuting such  partnership  shall  be  set  forth  in  the  declaration,  the  plaintiffs 
shall  not  be  required  to  prove  the  existence  of  the  said  partnership  as 
described  in  said  declaration,  unless  the  defendant  or  some  other  person 
shall,  by  plea  verified  by  affidavit,  deny  the  existence  of  such  partner- 
ship." Sess.  Acts  1839,  p.  43.  ch.  66.  §  4.  This  statute  alters  the  rule 
acted  on  in  Dob  v.  Hahcy,  16  Johns.  34.  Wilson  v.  Wallace,  8  Serg. 
&L  Rawle  53.  and  in  other  cases,  but  the  precise  manner  in  which  the 
statute  is  to  be  carried  out  admits  of  some  doubt.  It  would  seem  to  be 
sufficient,  when  the  general  issue  is  pleaded,  to  file  an  affidavit  denying 
the  existence  of  the  partnership.  But  it  may  be  contended,  upon  the 
words  of  the  statute,  that  there  must  be  a  plea  in  terms  denying  the  ex- 
istence of  the  partnership,  and  that  this  plea  must  be  verified  by  affidavit. 


Pleas  in  bar  and  other  proceedings  till  issue.  61 

6.  Plea  of  non  est  factum  by  an  obligor.     1  Rob.  Prac.  208. 

In  the  &c.     C.  D.  ads  A.  B. 

And  the  said  C.  D.  by  E.  F.  his  attorney  comes  and  defends 
the  wrong  and  injury,  when  &c.  and  says,  that  the  said  supposed 
writing  obligatory  in  the  declaration  mentioned  is  not  his  deed  ; 
and  of  this  he  puts  himself  upon  the  country. 

Affidavit  proving  the  same. 

H.  county,  to  wit :  This  day  C.  D.  the  defendant  named  in 
the  foregoing  plea,  personally  appeared  before  me,  a  justice  of 
the  peace  for  the  said  county,  and  made  oath  that  the  said  plea 
is  true.     Given  under  my  hand  this day  of . 

Note.  In  Jackson  v.  Webster,  6  Munf.  462.  after  the  word  true,  was 
added  "  to  the  best  of  his  knowledge  and  belief;"  and  it  was  decided 
that  the  insertion  of  these  words  in  the  affidavit  was  not  sufficient  cause 
for  excluding  the  plea. 

7.  Plea  of  tion  est  factum  by  an  executor  or  administrator.     1  Rob. 

Prac.  208. 

In  the  plea,  after  the  words  "  and  the  said  C.  D."  insert  "  executor 
{or,  administrator)  as  aforesaid."  And  after  the  words  "  in  the  declara- 
tion mentioned,"  insert  "  is  not  the  deed  of  the  said  G.  H.  deceased." 

Let  the  affidavit  be  as  before,  to  the  word  oath,  and  then  as  follows : 
"  that  he  verily  believes  that  the  supposed  writing  obligatory,  on  which 
the  action  above  mentioned  is  founded,  is  not  the  deed  of  the  said  G. 
H.  deceased.     Given  under  my  hand  this day  of ." 

8.  Plea  of  non  est  factum  by  an  administrator,  with  oyer  of  the  bond, 
and  affidavit  that  it  ivas  delivered  as  an  escroio.  1  Rob.  Prac. 
208.  * 

And  the  said  H.  L.  C.  administrator  as  aforesaid,  by  his  at- 
torney, comes  and  defends  the  wrong  and  injury,  when  &c.  and 
craves  oyer  of  the  said  supposed  writing  obligatory  in  the  de- 
claration mentioned,  and  it  is  read  to  him  in  these  words  :  (Here 
insert  the  obligation.)  He  also  craves  oyer  of  the  condition  of 
the  said  supposed  writing  obligatory,  and  it  is  read  to  him  in 
these  words :  (Here  insert  the  condition.)  Which  being  read 
and  heard,  the  said  II.  L.  C.  administrator  as  aforesaid  says, 
that  the  said  supposed  writing  obligatory  is  not  the  deed  of  the 
said  A.  R.  T.  deceased ;  and  of  this  he  puts  himself  upon  the 
country. 


62  Pleas  in  bar  and  other  proceedings  till  issue, 

JVote.  The  plea  of  non  est  factum,  whether  general  or  special,  is  a  denial  of 
the  existence  of  the  deed ;  the  uniform  conclusion  is  to  the  country ;  and  the 
plaintiff  can  never  reply  any  new  matter.  Carr,  J.  in  Cleaton  v.  Chambliss,  6 
Rand.  91. 

Affidavit. 

Cily  of  R.  to  wit :  H.  L.  C.  administrator  of  A.  R.  T.  de- 
ceased, personally  appeared  before  me,  J.  T.  mayor  of  the  said 
city,  and  made  oath,  that  he  verily  believes  that  the  supposed 
writing  obligatory  mentioned  in  the  foregoing  plea  is  not  the  deed 
of  the  said  A.  R.  T.  deceased.  The  said  H.  L.  C.  further  made 
oath,  that  he  believes  the  said  A.  R.  T.  agreed  to  be  surety  in 
the  said  writing  upon  condition  that  the  same  should  be  execu- 
ted by  certain  other  persons  as  cosureties,  and  especially  by  one 
R.  G.  S.  and  one  R.  M. — that  he  verily  believes,  when  the  said 
writing  was  presented  to  the  said  A.  R.  T.  for  his  signature,  the 
name  and  seal  of  the  said  R.  G.  S.  were  attached  thereto,  and 
the  name  of  the  said  R.  M.  was  inserted  in  the  body  of  the  said 
writing,  but  the  same  was  not  signed  by  the  said  R.  M. — that 
he  believes  the  said  A.  R.  T.  thereupon  signed  and  sealed  the 
said  writing,  and  delivered  the  same  to  the  person  by  whom  it 
was  handed  to  him,  upon  this  condition,  that  if  the  said  R.  M. 
should  execute  the  same  as  a  cosurety,  then  the  same  should  be 
delivered  as  the  deed  of  the  said  A.  R.  T.  but  not  otherwise ; 
that  the  same  was  never  executed  by  the  said  R.  M. — and  the 
said  H.  L.  C.  believes  the  name  of  the  said  J^.  M.  was  erased 
from  the  body  thereof  after  the  same  went  out  of  the  hands  of 
the  said  A.  R.  T.  Given  under  my  hand  this  10th  day  of  July 
1829. 

9.  In  actioTi  upon  judgment  in  another  state,  entered  upon  confession 
under  'power  of  attorney,  plea  denying  the  execution  of  the  power 
of  attorney  and  the  validity  of  the  judgvietit. 

Wilson  <^c.  V.  TJie  Bank  of  Mount  Pleasant,  6  Leigh  570.  was  an 
action  of  debt  in  the  circuit  court  of  Ohio  county  by  the  bank  of  Mount 
Pleasant  against  Wilson  and  others,  on  a  judgment  rendered  against 
them  in  the  state  of  Ohio,  by  confession,  under  a  power  of  attorney  to 
confess  judgment,  made  before  action  brought.  The  defendants  pleaded 
that  the  power  of  attorney  under  which  the  judgment  was  confessed, 
was  given  by  some  person  to  the  defendants  unknown,  and  was  not 
given  or  made  by  them,  or  any  or  either  of  them,  and  that  they  had  no 
notice  of  the  pendency  or  commencement  of  the  suit  in  Ohio  in  which 
the  judgment  was  so  confessed.  The  bank  demurred  to  the  plea.  And 
the  court  of  appeals  overruled  the  demurrer,  and  held  the  plea  to  be  a 
bar  to  the  action. 


Pleas  171  bar  and  other  "proceedings  till  issue.  63 

10.  Plea  by  an  administrator,  in  debt  on  collateral  bond,  denying 

causes  of  action  set  forth  in  particular  breaches. 

And  for  a  further  plea  In  this  behalf,  the  said  H.  L.  C.  ad- 
ministrator as  aforesaid,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided,  says,  that  the  said  J.  P.  ought 
not  to  have  or  maintain  his  aforesaid  action  thereof  against  him, 
because,  as  to  the  said  supposed  breach  of  the  said  condition 
first  above  assigned,  the  said  H.  L.  C.  administrator  as  afore- 
said (protesting  that  the  said  A.  R.  T.  did  not,  in  virtue  of  the 
precept  of  the  said  warrant  issued  from  the  treasury  of  the 
United  States,  levy  the  same  upon  any  lands  of  the  said  W.  D. 
T.  therein  named)  says,  that  the  said  A.  R.  T.  did  not,  during 
his  continuance  in  his  said  office  of  deputy  of  the  plaintiff,  in 
virtue  of  the  precept  of  the  said  warrant,  make  sale  of  lands  of 
the  said  W.  D.  T.  and  collect  and  receive  the  proceeds  of  sales 
thereof,  amounting  to  the  sum  of  $5286.62  cents,  as  the  said  J. 
P.  hath  in  that  behalf  alleged,  nor  did  he  collect  and  receive 
the  proceeds  of  sales  thereof,  amounting  to  any  smaller  sum  : 
and  as  to  the  said  supposed  breaches  of  the  said  condition,  se- 
condly, thirdly,  fourthly  and  fifthly  above  assigned,  the  said 
H.  L.  C.  administrator  as  aforesaid,  says,  that  the  said  A.  R.  T. 
did  not  make  returns  upon  the  said  several  writs  oi  fieri  facias 
that  the  same  were  satisfied,  in  manner  and  form  as  the  said  J. 
P.  hath  in  that  behalf  alleged.  And  of  this  he  the  said  H.  L. 
C.  administrator  as  aforesaid,  puts  himself  upon  the  country. 

11.  Plea  of  no  such  record  to  debt  on  judgment  of  another  state  in 

the  union. 

And  the  said  C.  D.  by  his  attorney  comes  and  defends  the 
wrong  and  injury,  when  &c.  and  says,  that  there  is  not  any  re- 
cord of  the  said  supposed  recovery  in  the  said  declaration  men- 
tioned, remaining  in  the  said  court,  in  manner  and  form  as  the 
said  A.  B.  hath  above  in  his  said  declaration  alleged. 

Note.  In  Obin  v.  Knott,  Fortescue  339.  it  is  said  that  "  nul  tiel  re- 
cord, being  in  the  negative,  need  not  be  averred."  That  is,  as  mr. 
Archbold  says,  the  plea  "  must  not  conclude  with  a  verification  by  the 
record,  but  with  a  verification  merely."  Arch.  Civ.  PI.  249.  Accor-_ 
dingly  the  usual  conclusion  is  as  follows :  "  And  this  he  the  said  C.  D. 
is  ready  to  verify.  Wherefore  he  prays  judgment  if  the  said  A.  B. 
ought  to  have  or  maintain  his  aforesaid  action  thereof  against  him  the 
said  C  D.  &lc."  While,  however,  such  is  the  proper  conclusion  when 
the  plea  is  pleaded  in  Virginia  to  an  action  upon  a  judgment  obtained 
in  this  state,  it  is  by  no  means  clear  that  the  plea  should  so  conclude 
when  the  action  is  upon  a  judgment  obtained  in  another  state  in  the 


64  Pleas  in  bar  and  other  "proceedings  till  issue. 

union.  In  Collins  v.  Lord  Matthew,  5  East  473.  the  plaintiff's  action 
was  in  the  court  of  king's  bench  of  England  upon  a  judgment  reco- 
vered in  the  court  of  exchequer  in  Ireland,  and  the  judgment  was  stated 
to  be  for  certain  specified  sums,  "  as  by  the  record  and  proceedings 
thereof,  remaining  in  the  said  court  of  our  lord  the  king  of  his  exche- 
quer at  Dublin  in  Ireland  aforesaid,  more  fully  appears."  The  defen- 
dant pleaded  nul  tiel  record,  with  a  verification ;  and  the  plaintiff  de- 
murred specially.  In  support  of  the  demurrer,  it  was  contended  at  first 
that  the  case  fell  within  the  rule  governing  actions  on  foreign  judgments, 
to  which  it  was  settled  that  nul  tiel  record  could  not  be  pleaded.  But 
the  court  intimated  a  clear  opinion  that  since  the  union  between  Great 
Britain  and  Ireland,  the  judgments  of  the  irish  courts  are  properly 
pleadable  as  records.  And  lord  Ellenhorough,  C.  J.  said,  that  such  re- 
cords were  now  brought  before  the  house  of  lords  of  the  united  king- 
dom on  appeals  and  writs  of  error,  though  no  longer  returnable  into 
this  court  (the  court  of  king's  bench)  by  certiorari.  It  was  then  contend- 
ed, in  support  of  the  demurrer,  that  there  being  no  method  of  bringing 
the  original  irish  record  into  the  court  of  king's  bench,  there  was  no 
way  of  trying  its  existence  biit  by  an  examined  copy,  and  that  verified 
on  oath,  of  which  the  jury  were  to  judge,  and  therefore  that  the  plea 
ought  to  have  concluded  to  the  country,  and  not  with  a  verification. 
This  cause  of  demurrer  was  held  to  be  well  assigned.  Lord  Ellenho- 
rough said,  though  the  irish  judgment  be  a  record,  yet  being  only  prove- 
able  by  an  examined  copy  on  oath,  the  verity  of  the  evidence  could  only 
be  tried  by  a  jury,  and  not  by  the  court ;  and  therefore  the  conclusion 
should  have  been  to  the  country.  The  other  judges  concurred,  and 
judgment  was  given  for  the  plaintiff.  If  this  decision  shall  be  consi- 
dered applicable  to  an  action  of  debt  in  one  state  of  this  union  upon  a 
judgment  obtained  in  another,  then  to  the  above  plea  must  be  added  the 
words,  "  and  of  this  he  puts  himself  upon  the  country." 

12.  Plea  of  non  detinet.     1  Rob.  Prac.  80.  212. 

that  he  doth  not  detain  the  said  slave  in  the  said  decla- 
ration mentioned,  in  manner  and  form  as  the  said  A.  B.  hath 
complained  against  him,  and  of  this  he  puts  himself  upon  the 
country. 

13.  Flea  of  not  guilty  in  trespass  or  case.     1  Rob.  Prac.  212,  3. 

that  he  is  not  guilty  of  the  said  supposed  trespasses  (or, 


grievances)  above  laid  to  his  charge,  or  any  or  either  of  them, 
in  manner  and  form  as  the  said  A.  B.  hath  above  thereof  com- 
plained against  him,  and  of  this  &c. 

14.   Course  for  plaintiff  when  plea  concludes  to  the  country. 

As  no  issue  can  be  made  up  without  an  express  averment  on  the  one 
side,  and  a  direct  negative  on  the  other,  of  the  same  fact,  it  is  error  to 


Pleas  in  bar  and  other  proceedings  till  issue.  65 

conclude  a  plea  to  the  country  which  does  not  directly  deny  some  mat- 
ter directly  averred  on  the  other  side.  Green,  J.  in  Buck  v.  Fouchee  and 
wife,  1  Leigh  71.  But  after  a  conclusion  to  the  country,  all  pleading 
is  closed,  except  to  demur,  or  join  issue  by  a  similiter.  Same  judge. 
"  The  plaintiff,"  says  judge  Carr,  "  can  never  reply  any  new  matter 
when  a  plea  concludes  to  the  country.  He  must  either  accept,  by  a 
similiter,  the  issue  tendered,  or  demur."  See  his  opinion  in  Cleaton  v. 
Chambliss,  6  Rand.  91. 

15.  Similiter  to  one  plea,  and  demurrer  to  another. 

And  the  said  plaintiff,  as  to  the  plea  of  the  said  defendants 
by  them  first  above  pleaded,  and  whereof  they  have  put  them- 
selves upon  the  country,  doth  the  like. 

And  the  said  plaintiff,  as  to  the  plea  of  the  said  defendants 
by  them  secondly  above  pleaded,  saith,  that  the  same  and  the 
matters  therein  contained,  in  manner  and  form  as  the  same  are 
therein  pleaded  and  set  forth,  are  not  suflBcient  in  law  to  bar  or 
preclude  the  said  plaintiff  from  having  or  maintaining  his  afore- 
said action  thereof  against  them  the  said  defendants,  and  that 
he  the  said  plaintiff  is  not  bound  by  law  to  answer  the  same. 
Wherefore,  for  want  of  a  sufficient  plea  in  this  behalf,  he  the 
said  plaintiff  prays  judgment,  and 

{If  in  assumpsit)  his  damages  by  reason  of  the  not  performing 
the  said  several  promises  and  undertakings  in  the  declaration 
mentioned,  to  be  adjudged  to  him,  &c. 

{If  in  debt  for  a  penalty)  his  debt  aforesaid,  together  with  his 
damages  by  him  sustained  by  occasion  of  the  detention  thereof, 
to  be  adjudged  to  him,  &c. 

And  so  in  other  actions,  according  to  the  nature  of  the  case. 

16.  Rules  as  to  special  pleas. 

When  the  plea  denies  nothing  which  has  been  alleged  on  the  other 
side,  but  seeks  to  avoid  the  matter  alleged  on  the  part  of  the  plaintiff  by 
the  allegation  of  a  distinct  fact,  it  will  be  error  to  conclude  to  the  coun- 
try. Buck  v.  Fouchee  and  wife,  1  Leigh  64.  But  upon  demurrer  to 
the  plea,  the  court  will  not  regard  this  defect,  unless  it  be  specially  as- 
signed in  the  demurrer  as  cause  thereof.  Carthrae  S^c.  v.  Clarke,  5 
Leigh  268. 

All  special  pleas  in  bar,  where  any  new  matter  not  before  apparent 
upon  the  record  is  alleged,  ought  to  conclude  with  a  verification,  and  a 
submission  to  the  judgment  of  the  court  upon  the  matter  so  alleged : 
which  the  opposite  party  may  either  take  issue  upon,  by  a  total  denial 
of  the  facts  alleged ;  or  confess  and  avoid  them ;  or  admit  them  to  be 
true,  but  deny  their  sufficiency  in  law  to  avail  the  party.  Tucker,  J.  in 
Hard's  ex^x  v.  Dishman,  2  Hen.  &.  Munf.  600. 
9 


66  Pleas  in  bar  and  other  proceedings  till  issue. 

A  special  plea  concluding  *'  and  this  &/C."  was  adjudged  insufficient, 
where  the  defect  in  the  conclusion  was  specially  demurred  to.  Cooke 
V.  Beak's  ex'ors,  1  Wash.  313. 

Where  a  record  is  relied  on,  and  the  plea  concludes  "  And  this  he  is 
ready  to  verify,"  without  the  addition  of  the  words  "  by  the  record,^' 
the  plea  is  imperfect  for  the  want  of  this  addition,  and  would  be  held 
bad  on  a  special  demurrer  for  this  cause ;  but  this  would  not  be  a  tena- 
ble objection  on  general  demurrer.     Henry  v.  Stone,  2  Rand.  461. 

17.  Plea  against  a  specialty  under  statute  against  usury ;  being  a 
copy  of  first  plea  in  Steptoeh  admWs  v.  Harvey^s  ex'ors,  1  Leigh 
501. 

The  defendants  by  their  attorney  conne  and  defend  the  wrong 
and  injury,  when  &c.  and  crave  oyer  of  the  supposed  deed  in 
the  plaintiff's  declaration  mentioned,  which  is  read  to  them  in 
the  words  and  figures  following  to  wit :  (Here  it  was  inserted.) 
Whereupon  the  said  defendants  for  plea  say,  that  the  plaintiffs 
their  action  aforesaid  thereof  ought  not  to  have  and  maintain 
against  them,  because  they  say,  that  on  the  23ii.day  of  March 
in  the  year  1816,  at in  the  county  oi  Bedford,  i,t  was  un- 
lawfully and  corruptly  agreed  between  the  said  M.  H.  the  tes- 
tator of  the  plaintiffs,  and  W.  M.  the  first  named  covenantor  in 
the  said  supposed  deed,  that  the  said  testator  of  the  plaintiffs 
should  lend  and  advance  to  the  said  W.  M.  the  sum  of  14,200 
dollars,  and  should  forbear  and  give  day  of  payment  on  the  said 
loan  for  the  space  of  twelve  months  from  .and  after  the  said 
23d  day  of  March  1816,  and  that,  in  consideration  of  the  said 
loan  and  forbearance,  the  said  W.  M.  should  return  and  pay  to 
the  said  testator,  twelve  months  after  the  said  23d  of  March 
1816,  the  aforesaid  sum  of  14,200  dollars  with  more  than  six 
per  centum  per  annum  interest  thereon,  to  wit,  with  the  sum  of 
3000  dollars  as  the  premium  for  the  forbearance  and  giving  day 
of  payment  of  the  said  sum  of  14,200  dollars  for  twelve  months, 
and  that,  in  order  to  secure  the  payment  of  the  said  two  sums 
of  14,200  dollars  and  3000  dollars  at  the  expiration  of  the  said 
twelve  months,  and  as  a  shift  and  device  to  evade  the  laws 
against  usury,  the  said  W.  M.  together  with  C.  C,  J.  C.  S.  the 
testator  of  these  defendants,  and  R.  M.  as  his  sureties,  should 
execute  a  writing  under  their  seals,  and  deliver  it  as  their  act 
and  deed,  binding  them  to  pay  to  the  testator  of  the  plaintiffs, 
twelve  months  after  the  date  aforesaid,  172  shares  of  the  stock 
of  the  Farmers  bank  of  Virginia,  the  said  stock  being  then  and 

there,  to  w'xt.,  on  the  said  23d  of  March  1816,  at in  the 

county  aforesaid,  of  the  full  and  fair  value  of  17,200  dollars. 
And  the  defendants  in  fact  say,  that  in  pursuance  of  the  said 


Plea^  in  bar  and  other  'proceedings  till  issue.  67 

corrupt,  usurious  and  unlawful  contract,  and  in  fulfilment 
thereof,  and  for  no  other  consideration,  the  said  W.  M.,  C.  C, 
J.  C.  S.  their  testator,  and  R.  M.  did,  on  the  said  23d  of  March 

1816,  at in  the  county  aforesaid,  sign,  seal  and  deliver, 

as  and  for  their  act  and  deed,  the  aforesaid  supposed  deed  in 
the  declaration  mentioned.  And  so  the  defendants  say,  that  the 
said  supposed  deed  was  made  and  delivered  upon  a  usurious 
consideration,  against  the  act  of  assembly  in  that  case  provided, 
and  is  void  in  law.  And  this  they  are  ready  to  verify.  Where- 
fore they  pray  judgment  whether  the  plaintiffs  their  action  afore- 
said thereof  ought  to  have  and  maintain  against  them,  &c. 

18.  Plea  against  a  specialty  under  act  of  April  16.  1831.     1  Rob. 
Prac.  229.     S7nith  v.  Richards,  13  Peters  36. 

In  the  circuit  superior  court  of  law  and  chancery  for  the 
county  of  H.  and  city  of  R. — July  rules  1840. 
M.  v.  S.  and  G.  (1st  plea  of  defendant  6r.) 

And  the  defendant  G.  by  his  attorney  comes  and  defends  the 
wrong  and  injury,  when  &c.  and  says,  that  the  said  plaintiff  ought 
not  to  have  or  maintain  his  aforesaid  action  thereof  against  him, 
because  he  says,  that  heretofore,  to  wit,  on  the  17th  day  of  Sep- 
tember 1833,  it  having  been  suggested  that  gold  or  other  metals 
might  be  found  on  the  tract  of  land  of  TV.  W.  in  the  county  of 
Louisa,  and  W.  W.  B.,  W.  B.  junior,  W.  A.  T.,  D.  A.  T.,  W. 
B.  and  TV.  H.  being  willing  to  undertake  the  search  and  explo- 
ration for  the  same,  the  said  TV.  TV.  by  deed  bearing  date  on  that 
day,  leased  to  the  said  TV.  TV.  B.  and  the  said  five  other  persons 
named  after  him,  fifty  acres  of  the  said  tract  of  land,  to  be  laid 
off  by  certain  metes  and  bounds  around  a  vein  then  already  dis- 
covered, and  to  include  the  two  pits  or  shafts  then  already  sunk 
on  the  said  vein ;  to  have  and  to  hold  the  same  to  them  and 
their  assigns,  for  the  term  of  twenty-seven  years  from  the  17lh 
day  of  September  1833,  with  certain  provisoes  and  upon  cer- 
tain conditions  in  the  said  deed  mentioned,  and  especially  sub- 
ject to  an  interest  of  the  said  TV.  Tf^.  in  common  with  them  : 
and  afterwards,  before  the  making  of  the  said  supposed  wri- 
ting obligatory  in  the  declaration  mentioned,  and  before  the  ma- 
king of  the  supposed  contract  therein  mentioned,  all  the  rights 
and  interests  granted  by  the  said  deed  to  the  said  TV.  TV.  B. 
and  the  said  five  persons  named  after  him,  and  all  the  right  and 
interest  so  reserved  to  the  said  TV.  TV.  in  common  with  them, 
were,  for  a  small  consideration,  transferred  to  and  vested  in  cer- 
tain persons  of  whom  the  plaintiff  was  one,  to  wit,  in  the  plain- 
tiff and  J.  B.  G.,  J.  S.  F.,  B.  C,  J.  TV.  M.,  F.J.  TV.,  TV.  TV.  S., 
J.  L.  and  J.  M.  L.  in  the  following  proportions,  that  is  to  say,  the 


68  Pleas  in  bar  and  other  proceedings  till  issue. 

said  plaintiff  had  one  seventh,  the  said  J.  B.  G.  another  se- 
venth, the  said  J.  L.  another  seventh,  the  said  J.  M.  L.  a  se- 
venth, and  a  fourth  of  a  seventh,  the  said  F.  J.  TV.  a  seventh, 
and  a  third  of  a  seventh,  the  said  J.  S.  F.  one  half  of  a  seventh, 
the  said  B.  C.  one  third  of  a  seventh,  the  said  J.  W.  M.  one  third 
of  a  seventh,  and  the  said  W.  W.  S.  one  fourth  of  a  seventh : 
and  for  the  purpose  of  enabling  the  plaintiff  and  his  said  asso- 
ciates to  sell  their  said  rights  and  interests,  and  to  obtain  for  the 
same  an  exorbitant  price,  the  following  plan  was  devised  among 
them,  that  is  to  say,  an  act  of  assembly  passed  the  second  day 
of  March  1835,  entitled  *'  an  act  to  incorporate  the  Virginia  ex- 
ploring and  mining  company,"  was  to  be  made  use  of;  the  ca- 
pital stock  of  said  company  was  to  be  divided  into  five  thou- 
sand shares,  upon  which  forty  dollars  a  share  was  to  be  re- 
quired from  each  person  becoming  a  subscriber  to  the  stock, 
amounting,  for  the  whole,  to  two  hundred  thousand  dollars  ;  the 
plaintiff  and  his  said  associates,  before  named,  were  to  dispose 
of  their  rights  and  interests  before  mentioned,  to  the  Virginia 
exploring  and  mining  company,  for  two  hundred  thousand  dol- 
lars, of  which  they  were  to  receive  in  money  one  hundred  thou- 
sand dollars,  by  means  of  the  forty  dollars  a  share  on  twenty- 
five  hundred  shares  of  stock,  and  for  the  other  hundred  thou- 
sand dollars  they  were  to  have  the  other  half  of  the  stock ;  the 
taking  in  stock  one  half  of  the  purchase  money  was  to  be  held 
forth  to  the  public  as  evidence  of  a  very  favourable  opinion 
of  its  value,  and  other  representations  were  to  be  made,  calcu- 
lated to  induce  subscriptions :  and  afterwards,  to  wit,  on  the 
eighth  day  of  September  1836,  at  the  said  county  of  H.  efforts 
were  made  by  the  said  plaintiff  and  his  said  associates  to  ob- 
tain subscriptions  to  the  stock  in  the  Virginia  exploring  and  mi- 
ning company,  and  there  being  a  community  of  interest  and  de- 
sign among  them,  representations  were  then  and  there  made  by 
them,  or  some  of  them,  to  many  persons  in  the  city  of  R.  to 
wit,  in  the  said  county  of  H.  to  induce  them  to  subscribe  for 
stock  in  the  said  company,  which  representations  were  in  fact 
designed  to  operate  upon  all  persons  who  should  hear  of  them, 
and  it  was  the  wish  and  desire  of  the  said  plaintiff  and  his  said 
associates  that  all  persons  hearing  of  the  said  representations 
should  give  credit  to  them  and  act  upon  the  faith  of  them  ;  and 
it  was,  by  the  said  plaintiff  and  his  associates,  then  and  there 
pretended  and  represented  that  there  was  then  in  the  orehouse, 
upon  the  premises  sought  to  be  disposed  of,  a  very  great  quantity 
of  rich  gold  ore,  the  quantity  being  sometimes  stated  to  be  about 
five  thousand  bushels,  at  others  from  three  to  four  thousand 
bushels,  at  others  between  two  and  three  thousand  bushels,  and 
being  never  represented  as  less  than  a  thousand  bushels  ;  that 


Pleas  in   bar  and  other  "proceedings  till  issue.  69 

the  ore  in  the  orehouse  alone  was  sufficient  to  yield,  and  would 
yield,  a  very  large  sum  of  money,  estimated  at  from  twenty  to 
twenty-five  thousand  dollars ;  that  the  ore  in  the  orehouse  was 
taken  from  the  tunnels  in  the  said  premises,  one  at  about  forty 
feet  depth,  and  the  other  at  about  seventy  feet  depth,  and  chiefly 
from  the  latter;  that  if  the  company  should  be  compelled  to 
stop  at  the  point  to  which  the  exploration  had  then  reached, 
there  was  a  sufficiency  of  ore  then  already  exposed,  toge- 
ther with  that  in  the  orehouse,  to  reimburse  to  the  stockholders 
the  forty  dollars  a  share  to  be  paid  on  their  subscriptions ;  that 
the  mine  had  then  recently  been  opened  by  the  said  plaintiff 
and  his  said  associates,  and  no  ore  had  been  taken  from  it  ex- 
cept that  in  the  orehouse,  and  a  pile  lying  outside  the  house,  not 
thought  quite  so  good  ;  that  from  less  than  one  hundred  bushels 
of  ore  taken  from  the  said  tunnels,  and  not  selected,  but  such 
as  then  lay  in  the  oiehouse,  nearly  six  hundred  dollars  had  been 
obtained  ;  that  the  residue  of  the  ore  from  the  seventy  foot  tun- 
nel to  the  surface  was  believed  to  be  eqyally  good  ;  that  the  ore 
was  believed  to  improve  in  richness  as  it  went  deeper  ;  and  that 
the  vein  was  supposed  to  continue  a  great  distance  north  and 
south.  And  the  said  defendant  sailh,  that  in  consequence  of 
the  said  pretences  and  representations,  there  were  many  per- 
sons who,  believing  them  to  be  true,  and  confiding  in  them, 
subscribed  for  stock  in  the  said  company  ;  and  in  a  meeting  of 
the  stockholders,  there  was  chosen,  for  managing  the  affairs  of 
the  company,  a  board  of  directors,  of  whom  the  plaintiff  was 
one.  And  the  said  defendant  further  saith,  that  before  the  ma- 
king of  the  said  supposed  writing  obligatory  in  the  declaration 
mentioned,  and  the  said  supposed  contract  therein  mentioned, 
the  plaintiff,  being  a  stockholder  in  the  said  Virginia  exploring 
and  mining  company,  negotiated  with  the  said  W.  S.  S.  and 
with  this  defendant,  for  the  sale  of  the  fourteen  hundred  shares 
of  stock  in  the  said  company  which  are  mentioned  in  the  said 
contract  and  in  the  said  writing  obligatory,  and  while  so  nego- 
tiating, made  representations  to  them  in  relation  to  the  same 
matters  which  had  before  been  spoken  of  as  aforesaid  by  him 
and  his  aforesaid  associates,  and  made  his  said  representations 
of  the  said  matters  as  matters  of  fact,  and  not  of  opinion  merely, 
with  the  intention  that  the  said  IV.  S.  S.  and  this  defendant 
should  give  credit  to  them,  and  upon  the  faith  of  them  purchase 
from  him  stock  in  the  said  company ;  and  the  said  representa- 
tions were  of  things  material,  so  that  upon  the  truth  of  the  Shid 
representations  depended  the  value  of  the  mine,  and  the  value 
of  stock  in  the  said  company  ;  and  the  said  representations  were 
such  as,  if  true,  shewed  that  the  said  mine  must  be  a  rich  one, 
and  that  stock  in  the  said  company  must  be  valuable.     And  the 


70  Pleas  in  bar  and  other  proceedings  till  issue* 

said  defendant  further  saith,  that  the  plaintiff,  having  been  one 
of  the  proprietors,  as  before  mentioned,  before  stock  was  sub- 
scribed for  in  the  said  company,  and  being  a  director  in  the  said 
company,  and  having  greater  access  to  the  means  of  informa- 
tion upon  all  matters  having  a  bearing  upon  the  value  of  stock 
in  the  said  company,  than  persons  generally  had,  and  greater 
than  this  defendant  or  the  said  W.  S.  S.  had,  the  said  W.  S.  S. 
and  this  defendant,  at  the  time  of  the  said  negotiation,  and  at 
the  time  of  the  said  supposed  contract,  and  at  the  time  of  ma- 
king the  said  supposed  writing  obligatory,  confided  in  the  truth 
of  the  said  representations  made  by  the  said  plaintiff  while  ne- 
gotiating with  the  said  W.  S.  S.  and  this  defendant,  and  in  the 
truth  of  the  said  representations  previously  made  by  the  said 
plaintiff  and  his  associates  as  aforesaid,  and  the  plaintiff  knew 
that  they  did  so  confide,  and  yet  suffered  them  to  remain  under 
the  belief  that  the  said  representations  were  true.  And  the  said 
defendant  farther  saith,  that  the  said  supposed  contract  and  the 
said  supposed  writing  pbligatory  were  made  under  a  belief  of 
the  truth  of  the  said  representations  made  by  the  said  plaintiflT 
and  his  aforesaid  associates,  and  also  by  the  plaintiff  alone,  and 
were  entered  into  in  consequence  of  the  said  representations. 
And  the  said  defendant  farther  saith,  that  the  said  representa- 
tions so  made  were  untrue,  and  that,  at  the  time  of  the  said 
plaintiff's  so  negotiating,  and  at  the  time  of  making  the  said 
supposed  contract  and  the  said  supposed  writing  obligatory,  the 
said  plaintiff  knew  that  they  were  untrue.  And  the  said  de- 
fendant farther  saith,  that  at  the  time  the  said  supposed  contract 
was  made,  and  at  the  time  the  said  supposed  writing  obligatory 
was  made,  the  said  mine  was  a  poor  one,  and  stock  in  the  said 
company  was  in  truth  and  in  fact  of  no  intrinsic  value  whatever. 
And  this  the  said  defendant  is  ready  to  verify.  Wherefore  the 
said  defendant  says,  that  if  the  said  W.  S.  S.  and  this  defendant 
had  paid  and  satisfied  the  said  writing  obligatory,  they  would 
be  entitled  to  recover  damages  from  the  plaintiff  by  reason  of 
the  matters  herein  pleaded,  and  such  damages  would  be  to  the 
whole  amount  of  the  said  writing  obligatory;  and  the  said  wri- 
ting obligatory  not  having  been  paid  or  satisfied,  this  defendant 
is  entitled  to  relief  against  the  obligation  of  the  contract  upon 
him,  in  whole,  and  for  the  whole  amount  of  the  said  writing 
obligator}'. 

Affidavit. 

H.  county,  to  wit : 

This  day  T.  G.  the  defendant  named  in  the  foregoing  plea, 
personally  appeared  before  me,  a  justice  of  the  peace  in  and 


Pleas  in  bar  and  other  'proceedings  till  issue.  71 

for  the  said  county,  and  made  oath  that  the  said  plea  is  true  to 
the  best  of  his  knowledge  and  belief.     Given  under  my  hand 

and  seal  this day  of . 

[seal.] 

19.  Another  -plea  against  the  specialty  in  same  case  and  under  same 

statute. 

M.  V.  S.  and  G.     (2d  plea  of  defendant  G.) 

And  for  a  further  plea  in  this  behalf  the  said  defendant  G. 
saith,  that  the  said  plaintiff  ought  not  to  have  or  maintain  his 
aforesaid  action  thereof  against  him,  because  he  says,  that  be- 
fore the  making  of  the  said  supposed  writing  obligatory  in  the 
declaration  mentioned,  and  before  the  making  of  the  supposed 
contract  therein  mentioned,  to  wit,  on  the day  of  Sep- 
tember 1836,  at  the  said  county  of  if.  efforts  were  made  by  the 
said  plaintiff  to  dispose  of  stock  in  the  Virginia  exploring  and 
mining  company,  and  representations  were  then  and  there  made 
by  the  said  plaintiff  to  many  persons  in  the  city  of  Richmond^ 
to  induce  them  to  contract  for  stock  in  the  said  company,  which 
representations  were  in  fact  designed  by  the  plaintiff  to  operate 
upon  all  persons  who  should  hear  of  them,  and  it  was  the  de- 
sire and  intention  of  the  said  plaintiff  that  all  persons  hearing 
of  the  said  representations  should  give  credit  to  them  and  act 
upon  the  faith  of  them  ;  and  the  said  representations  then  and 
there  made  by  the  plaintiff  were  of  things  as  matters  of  fact, 
and  not  of  opinion  merely,  and  were  of  things  material,  so  that 
upon  the  truth  of  the  said  representations  depended  the  value 
of  stock  in  the  said  company ;  that  is  to  say,  the  said  represen- 
tations were  as  to  the  quantity  of  gold  ore,  of  rich  quality,  that 
was  in  the  orehouse  upon  the  premises  belonging  to  the  said 
company,  the  amount  that  the  said  ore  in  the  orehouse  would 
yield,  the  places  from  which  the  said  ore  was  taken,  the  way  in 
which  it  was  obtained  from  the  mine  and  transferred  to  the 
orehouse,  and  the  quantity  of  ore  remaining  in  the  mine,  as  well 
as  the  richness  thereof;  and  the  said  representations  in  regard 
to  these  things  were  such  as,  if  true,  shewed  that  the  said  mine 
must  be  a  rich  one,  and  that  stock  in  the  said  company  must  be 
valuable.  And  the  said  defendant  farther  saith,  that  at  the  time 
of  the  said  representations  the  said  plaintiff  was  a  director  in 
the  Virginia  exploring  and  mining  company,  and  had  greater 
access  to  the  means  of  information  as  to  the  matters  to  which 
the  said  representations  related,  than  persons  generally  had, 
and  greater  than  this  defendant  had,  and  the  said  defendant 
confided  in  the  truth  of  the  said  representations,  and  the  plain- 
tiff knew  that  he  did  so  confide,  and  yet  suffered  him  to  remain 


J2  Pleas  in  bar  and  other  proceedings  till  issue. 

under  the  belief  that  the  said  representations  were  true.  And 
the  said  defendant  further  saith,  that  under  a  belief  of  the  truth 
of  the  said  representations,  and  in  consequence  of  them,  he  en- 
tered into  the  supposed  contract  before  mentioned,  and  the  said 
supposed  writing  obligatory.  And  the  said  defendant  further 
saith,  that  at  the  time  the  said  representations  were  so  made, 
and  at  the  time  the  said  supposed  contract  and  the  said  sup- 
posed writing  obligatory  were  entered  into,  the  said  representa- 
tions were  untrue,  and  the  plaintiff  knew  the  same  to  be  untrue. 
And  the  said  defendant  further  saith,  that  at  the  time  the  said 
supposed  contract  was  made,  and  at  the  time  the  said  supposed 
writing  obligatory  was  made,  the  said  mine  was  a  poor  one,  and 
stock  in  the  said  company  was  in  truth  and  in  fact  of  no  intrin- 
sic value  whatever.  And  this  the  said  defendant  is  ready  to 
verify.  Wherefore  the  said  defendant  says,  that  if  he  the  said 
defendant  had  paid  and  satisfied  the  said  writing  obligatory,  he 
would  be  entitled  to  recover  damages  from  the  plaintiff"  by 
reason  of  the  matters  herein  pleaded,  and  such  damages  would 
be  to  the  whole  amount  of  the  said  writing  obligatory ;  and  the 
said  writing  obligatory  not  having  been  paid  or  satisfied,  this 
defendant  says  that  he  is  entitled  to  relief  against  the  obligation 
of  the  contract  upon  him,  in  whole,  and  for  the  whole  amount 
of  the  said  writing  obligatory. 

20.  Another  plea  against  the  specialty  in  same  case  and  under  same 

statute. 

M.  V.  S.  and  G.  (3d  plea  of  defendant  G.) 

And  the  said  defendant  G.  for  a  further  plea  in  this  behalf, 
saith,  that  the  said  plaintiff"  ought  not  to  have  or  maintain  his 
aforesaid  action  thereof  against  him,  because  he  says,  that  at 
the  time  of  making  the  said  supposed  writing  obligatory  in  the 
declaration  mentioned,  and  at  the  time  of  making  the  said  sup- 
posed contract  therein  mentioned,  the  plaintiff"  was  a  director  in 
the  said  Virginia  exploring  and  mining  company,  and  by  reason 
of  the  information  obtained  by  him  as  such  director,  and  in  other 
ways,  professed  to  be  better  informed  upon  matters  bearing 
upon  the  value  of  stock  in  the  said  company,  than  persons  ge- 
nerally ;  and  the  said  defendant  confided  that  the  plaintiff",  in 
making  a  contract  with  him  for  stock  in  the  said  company, 
would  communicate  truly  and  fairly  with  him,  and  would  not, 
in  making  such  contract,  intentionally  conceal  or  suppress  facts 
within  the  said  plaintiff's  knowledge,  having  a  material  and 
important  bearing  upon  the  value  of  stock  in  the  said  company, 
and  in  this  confidence  the  said  defendant  negotiated  with  the 
plaintiff"  for  the  stock  mentioned  in  the  said  supposed  writing 


Pleas  in  bar  and  other  proceedings  till  issue.  73 


■•^. 


obligatory  and  in  the  said  supposed  contract.  And  the  said 
defendant  saith,  that  at  the  time  of  the  said  negotiation,  and  at 
the  time  of  making  the  said  supposed  contract,  and  at  the  time 
of  making  the  said  supposed  writing  obhgatory,  he  had  been 
deluded  into  the  belief  that  the  quantity  of  gold  ore  in  the  ore- 
house  upon  the  premises  belonging  to  the  said  compan}^  was 
much  larger  than  in  truth  and  in  fact  it  was,  and  into  the  belief 
that  there  was  a  large  quantity  of  rich  ore  remaining  in  the 
mine,  when  such  was  not  the  fact,  and  into  the  belief  that  the 
mine  was  a  rich  one,  and  stock  in  the  said  company  of  great 
value,  when  in  truth  and  in  fact  the  mine  was  poor,  and  the 
said  stock  was  of  no  intrinsic  value  whatever:  and  although  the 
said  plaintiff  well  knew  that  the  said  defendant  was  ignorant  of 
the  true  state  of  facts  in  these  respects,  and  although  the  said 
plaintiff  had  himself  full  knowledge  how  the  facts  really  and 
truly  were  in  these  respects,  5'et  the  said  plaintiff,  when  the  said 
supposed  contract  was  so  made,  and  when  the  said  supposed 
writing  obligatory  was  so  executed,  intentionally  concealed  and 
suppressed  from  the  said  defendant  the  true  state  of  facts  in  the 
respects  aforesaid,  and  knowingly  suffered  the  said  defendant 
to  make  the  said  supposed  contract  and  the  said  supposed 
writing  obligatory,  under  the  delusion  before  mentioned.  And 
this  the  said  defendant  is  ready  to  verify.  Wherefore  the  said 
defendant  says,  that  if  he  the  said  defendant  had  paid  and  sa- 
tisfied the  said  writing  obligatory,  he  would  be  entitled  to  reco- 
ver damages  from  the  plaintiff  by  reason  of  the  matters  herein 
pleaded,  and  such  damages  would  be  to  the  whole  amount  of 
the  said  writing  obligatory  ;  and  the  said  writing  obligatory  not 
having  been  paid  or  satisfied,  this  defendant  says  that  he  is  en- 
titled to  relief  against  the  obligation  of  the  contract  upon  him, 
in  whole,  and  for  the  whole  amount  of  the  said  writing  obli- 
gatory. 

21.  Pleas  by  common  carrier  to  excuse  the  nondelivery  of  goods. 
Amies  v.  Stevens,  1  Str.  128.  Calt  Sfc.  v.  M^Mechen,  6  Johns. 
Rep.  160.  Gordon  ^c.  v.  Little,  8  Serg.  &  Rawle  536,  7.  Bell 
V.  Reed  Sfc.  4  Binn.  127. 

S.  w.W. 

And  the  said  E.  W.  by  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when  &c.  and  says,  that  the  said  J.  A.  S. 
ought  not  to  have  or  maintain  his  aforesaid  action  thereof  against 
him,  because  he  says,  that  after  the  said  plaintiff  had  laden  on 
board  a  certain  boat,  owned  by  him  the  said  E.  W.  sundry  bar- 
rels of  flour,  to  wit,  the  eighty  barrels  of  flour  in  the  declaration 

mentioned,  to  wit,  on  the day  of ,  at  Palmyra  on  the 

10 


74  Pleas  in  bar  and  other  'proceedings  till  issue, 

Rivanna  a  branch  of  James  river,  the  said  boat,  so  laden  as  afore- 
said with  the  said  flour,  became  and  was,  near  to  Palmyra  afore- 
said, encompassed  by  the  ice  formed  in  the  said  Rivanna  river, 
before  it  was  practicable  to  carry  away  or  deliver  the  said  flour, 
at  Richmond  aforesaid,  to  the  said  plaintiff  or  his  agent,  and  in 
that  condition  the  said  boat,  so  laden  as  aforesaid,  necessarily 
remained  for  a  long  space  of  time,  to  wit,  for  the  space  of  four 
weeks ;  and  the  servants  and  agents  of  the  said  E.  W.  being 
thus  prevented  by  the  act  of  God  from  carrying,  conveying  and 
delivering  the  said  flour  at  Richmond  aforesaid,  apprized  the  said 
J.  A.  S.  thereof,  and  at  various  times  during  the  said  long  space 
of  time  requested  him  to  take  back  the  said  flour  into  his  own 
possession,  but  the  said  J.  A.  S.  neglected  and  failed  so  to  do; 
and  in  consequence  of  such  neglect  and  failure  of  the  said  J.  A. 
S.  the  said  flour  continued  in  the  boat  of  him  the  said  E.  W. 
until  the  ice  in  the  said  Rivanna  river  suddenly  broke  up  in  the 
night,  when,  by  reason  of  the  sudden  and  unexpected  breaking 
up  of  the  ice  in  the  night  time,  and  not  because  of  any  want  of 
care  of  the  said  E.  W.  his  servants  or  agents,  the  said  boat,  so 
laden  as  aforesaid,  was  overturned  in  the  said  Rivanna  river, 

and of  the  said  barrels  of  flour  were  damaged  by  wet, 

and  the  residue  lost.  And  this  he  the  said  E.  W.  is  ready  to 
verify.  Wherefore  he  prays  judgment  if  the  said  /.  A.  S.  ought 
to  have  or  maintain  his  aforesaid  action  thereof  against  him. 

And  for  a  further  plea  in  this  behalf  the  said  E.  W.  says,  that 
the  said  J.  A.  S.  ought  not  to  have  or  maintain  his  aforesaid  ac- 
tion thereof  against  him,  because  he  says,  that  after  the  said  J. 
A.  S.  had  laden  on  board  a  certain  boat,  owned  by  him  the  said 
E.  W.  and  employed  as  aforesaid,  the  eighty  barrels  of  flour  in 
the  declaration  mentioned,  and  before  it  was  practicable  to  have 
carried,  conveyed  and  delivered  the  said  flour  at  Richmond  afore- 
said, the  said  boat,  so  laden  as  aforesaid,  after  proceeding  a  short 
distance  from  Palmyra  aforesaid,  to  wit,  about  the  distance  of 
three  miles,  became  and  was  encompassed  by  the  ice  which  was 
formed  in  the  said  Rivanna,  river,  and  frozen  around  the  said 
boat,  and  in  that  condition  the  said  boat,  being  so  laden  as  afore- 
said, and  so  surrounded  by  the  ice,  remained  in  the  said  Rivanna 
river  for  a  long  space  of  time,  to  wit,  for  the  space  of  four  weeks, 
during  all  which  time  it  was  wholly  impracticable  to  carry,  con- 
vey and  deliver  the  said  flour  at  Richmond  aforesaid  ;  and  at  the 
expiration  of  the  said  space  of  time,  in  the  night,  to  wit,  about 
two  hours  before  daybreak,  and  without  any  previous  indication 
of  a  thaw  on  the  day  preceding  or  in  the  early  part  of  the  said 
night,  the  ice  in  the  said  Rivanna  river  suddenly  broke  up,  and 
came  in  contact  with  the  said  boat  with  such  violence,  that  the 
said  boat  instantly  sunk,  and  the  flour  with  which  the  said  boat 


Pleas  in  bar  and  other  proceedings  till  issue.  75 

had  been  laden  was  swept  and  carried  out  of  the  same,  without 
any  negligent  or  improvident  management  on  the  part  of  the 
said  E.  W.  his  servants  or  agents,  and  without  any  want  of  care 
on  their  part  in  the  premises ;  and  after  the  said  flour  had  been 

swept  and  carried  out  of  the  boat  as  aforesaid, of  the 

said  barrels  of  flour,  by  great  efforts  on  the  part  of  the  servants 
and  agents  of  the  said  E.  TV.  and  of  other  persons  employed  by 
him  to  assist  in  that  behalf,  were  saved,  and  without  any  loss  or 
damage  other  than  that  arising  from  their  being  swept  and  car- 
ried out  of  the  boat  as  aforesaid,  were  carried,  conveyed  and 
delivered,  at  Richmond  aforesaid,  to  the  agent  of  the  said  plain- 
tiff"; but  the  residue  of  the  said  flour,  notwithstanding  every  thing 
was  done  that  was  in  the  power  of  the  said  E.  W.  his  servants 
or  agents,  was  utterly  lost.  And  this  he  the  said  E.  W.  is  ready 
to  verify.  Wherefore  he  prays  judgment  if  the  said  J.  A.  S. 
ought  to  have  or  maintain  his  aforesaid  action  thereof  against 
him. 

Kote.  The  plaintiff  demurred  to  these  pleas.  Upon  argument  of  the  demurrer, 
the  circuit  court  of  Henrico  (Clopton,  judge)  held  the  pleas  to  be  good,  and  en- 
tered judgment  for  the  defendant.  Here  the  cause  ended.  It  was  never  carried 
to  the  court  of  appeals. 

22.  In  debt  on  a  bounds   bond,  oyer  prayed,  and  plea   of  condi- 
tions performed.     1  Rob.  Prac.  209. 

C.  D.  ads  A.  B.  And  the  said  C.  D.  by  his  attorney  comes 
and  defends  the  wrong  and  injury,  when  &c.  and  craves  oyer  of 
the  said  writing  obligatory  in  the  declaration  mentioned,  and  it 
is  read  to  him  in  these  words  :  (Here  insert  the  same.)  And  he 
also  craves  oyer  of  the  condition  of  the  said  writing  obligatory, 
and  it  is  read  to  him  in  these  words :  (Here  insert  the  same.) 
Which  being  read  and  heard,  the  said  C.  D.  says  that  the  plain- 
tiff" ought  not  to  have  or  maintain  his  aforesaid  action  thereof 

against  him,  because  be  says,  that  the  said did  not  depart 

or  go  out  of  the  rules  or  bounds  of  the  said  prison  during  the 

year  for  which  he  had  the  benefit  of  the  same,  and  the  said 

did  moreover  render  his  body  to  prison  in  satisfaction  of  the  said 
execution,  at  the  expiration  of  the  said  year.  And  this  &c. 
(concluding  with  a  verification,  as  ante.  No.  21.) 

23.  Plea  of  conditions  performed  in  other  cases. 

In  Cooke  v.  Graham's  adm'r,  5  Munf.  172.  the  defendant  prayed 
oyer  of  the  condition,  which  recited  that  the  defendant  had  lent  a  cer- 
tain sum  of  the  plaintiflTs  money  to  a  third  person,  who  had  failed,  but 
paid  a  part,  and  the  defendant  had  instituted  a  suit  against  him  for  the 
recovery  of  the  balance.     The  condition  was,  that  the  defendant  should 


76  Pleas  in  har  and  other  'proceedings  till  isstie. 

pay  the  whole  sum  so  lent,  if  it  could  be  recovered  from  the  loanee  or 
his  endorser,  or,  in  case  it  could  not  be  wholly  recovered,  would  lose 
one  half  of  that  sum  which  could  not  be  recovered.  The  defendant 
pleaded  that  he  could  not  recover  of  the  loanee  or  his  endorser  the  sum 
of  money  in  the  condition  mentioned,  or  any  part  thereof,  and  that  he 
had  paid  to  the  plaintiff  one  half  of  the  sum  which  could  not  be  so  re- 
covered, and  likewise  the  sum  which  the  loanee  had  paid  before  he 
failed.  This  plea  was  demurred  to  ;  and  it  was  objected  to  it,  that  it 
did  not  allege  that  the  defendant  had  used  due  diligence  to  recover  the 
money  from  the  loanee  or  his  endorser,  or  what  measures  he  took  to  re- 
cover the  same.  The  court  of  appeals  was  of  opinion  that  the  plea  was 
good,  not  only  because  the  averment  in  it  was  in  the  terras  of  the  con- 
dition of  the  bond,  but  also  because  it  imported  that  due  diligence  had 
been  used  by  the  defendant  to  recover  the  money.  The  demurrer  to 
the  plea  was  therefore  overruled. 

24.  In  covenant  for  hire  and  clothing,  plea  of  covenants  performed . 
1  Rob.  Prac.  211. 

*  says,  that  the  said  plaintiff  ought  not  to  have  or  main- 
tain his  aforesaid  action  thereof  against  him,  because  he  says, 
that  he  the  said  defendant  did  furnish  the  said  negro  man  named 
Charles  with  such  clothes  as  are  usually  furnished  to  hired  ne- 
groes, at  the  end  of  the  year  1827,  and  did,  before  this  action 
was  brought,  pay  to  the  said  plaintiff  the  said  sum  of  $  75.  And 
this  &c.  (as  ante,  No.  21.) 

*  If  oyer  be  taken,  and  the  obligation  have  a  condition,  the  commence- 
ment may  be  like  No.  22. 

26.  In  debt  on  bond,  plea  of  payment  before  action  brought,  of  prin- 
cipal and  interest  mentioned  in  condition.     1  Rob.  Prac.  209. 

(Like  No.  22,  to) because  he  says,  that  he  the  said  C.  D. 

before  this  action  was  brought,  paid  the  principal  and  interest 
which  were  due  by  the  said  condition.  And  this  &c.  (like  No. 
21.) 

26.  In  debt  on  bond,  plea  by  surety  under  act  in  1  R.  C.  1819,  p. 

461.  §  6. 

(Like  No.  22,  to) because  he  says,  that  by  the  said  wri- 
ting obligatory  he  became  bound  as  surety  for  the  said  T.  H.  M. 
for  the  payment  of  the  money  mentioned  in  the  condition  thereof, 
and  after  an  action  had  accrued  on  the  said  writing  obligatory, 

to  wit,  on  the day  of 1819,  at  the  city  aforesaid,  he 

the  said  E.  B.  apprehending  that  the  said  T.  H.  M.  his  princi- 
pal was  about  to  migrate  from  this  commonwealth  without  pre- 


Pleas  in  bar  and  other  proceedings  till  issue*  77 

viously  discharging  the  said  writing  obligatory,  in  which  case  it 
would  be  impossible  or  extremely  difficult  tor  the  said  E.  B. 
after  being  compelled  to  pay  the  amount  of  the  money  which 
might  be  due  thereon,  to  recover  the  same  back  from  his  said 
principal,  did,  by  notice  in  writing,  require  the  said  J.  A.  forth- 
with to  put  the  said  writing  obligatory  in  suit,  and  the  said  J.  A. 
although  so  required,  did  not,  in  a  reasonable  time,  commence 
an  action  on  the  said  writing  obligatory,  and  before  the  com- 
mencement of  this  action  the  said  T.  H.  M.  migrated  from  this 
commonwealth.  By  reason  whereof,  and  by  force  of  the  statute 
in  such  case  made,  the  said  J.  A.  has  forfeited  the  right  which 
he  would  otherwise  have  had  to  demand  and  receive  of  the  said 
E.  B.  the  amount  of  the  money  due  by  the  said  writing  obliga- 
tory.    And  this  &c.  (as  ante,  No.  21.) 

27.  Plea  under  the  same  statute,  adjudged  good  in  Wright's  adnCr  v. 
Stockton,  5  Leigh  153. 

says,  that  /.  A.,  J.  P.  W.,  T.  W.  C.  and  R.  W.  were  the 

sureties  of  N.  H.  in  the  said  writing  obligatory  in  the  declara- 
tion mentioned ;  that  on  the  24th  of  January  1820,  the  three 
first  named  sureties  gave  to  the  plaintiff  a  written  notice  requir- 
ing her  to  institute  a  suit  upon  the  said   bond,  but  the  plaintiff 

did  delay  for  an  unreasonable  time,  to  wit,  until  the day  of 

(before  which  time  A^.  H.  the  principal  became  and  re- 
mains wholly  insolvent)  to  institute  a  suit  thereon,  on  which  said 
last  mentioned  day  she  instituted  a  suit  thereon  in  the  superior 
court  of  law  for  the  county  of  Campbell,  against  N.  H.,  T.  W.  C, 
J.  A.  and  J.  P.  W.  in  which  suit  such  proceedings  were  had, 

that  at  the term  of  the  said  court,  the  cause  coming  on  to 

be  tried,  it  was  then  and  there,  by  the  judgment  of  the  said 
court,  determined  that  J.  P.  W.,  J.  A.  and  T.  W.  C.  three  of 
the  sureties  in  the  said  writing  obligatory,  were,  by  reason  of 
the  premises,  wholly  discharged  from  all  liability  to  pay  the  said 
sum  of  money  or  any  part  thereof,  which  judgment  remains  in 
full  force,  and  in  no  wise  reversed  or  appealed  from  :  by  means 
whereof  the  said  R.  W.^s  estate  became  and  is  wholly  discharged 
from  all  liability  to  pay  the  said  sum  of  money  or  any  part  of  it. 
And  this  the  defendant  is  ready  to  verify. 

28.  Accord  and  satisfaction. 

An  accord  with,  and  satisfaction  received  from,  one  of  several  persons 
guilty  of  a  joint  assault  and  battery,  is  a  bar  to  the  action  as  to  them  all, 
notwithstanding  the  acknowledgment  of  such  satisfaction  be  expressed 
as  applying  only  to  the  part  which  that  one  took  in  the  trespass,  and 


78  Pleas  in  bar  and  other  proceedings  till  issue' 

notwithstanding  a  proviso  that  it  shall  not  operate  in  favour  of  the  other 
trespassers.  Ruble  v.  Turner  S^c.  2  Hen.  &  Munf.  38.  See  also  Am- 
monett  v.  Harris  S^c.  1  Id.  488, 

29.  Former  judgment  upo?i  same  matter. 

To  make  a  plea  of  former  judgment  or  decree  a  bar  to  the  action,  it 
is  necessary  that  the  decision  relied  on  should  be  the  decision  of  the 
very  matter  in  controversy  in  the  suit  in  which  the  plea  is  offered,  and 
that  the  court  making  the  decision  should  be  a  court  having  competent 
jurisdiction  to  decide  the  matter  in  controversy.  In  Pleasants  v.  Cle- 
ments, 2  Leigh  474.  the  matter  in  controversy  was  a  claim  for  damages 
for  the  breach  of  a  warranty  of  a  slave,  and  the  defendant  offered  to 
plead  in  bar  a  decree  of  a  court  of  chancery  dismissing  a  bill  fded  to 
vacate  the  contract  on  the  ground  of  fraud.  The  court  of  appeals  held 
this  plea  to  be  bad,  being  of  opinion  that  the  decision  of  the  suit  in 
equity  against  the  plaintiff  was  no  bar  to  his  action ;  for  though  the 
plaintiff  was  not  entitled  to  vacate  the  contract  on  the  ground  of  fraud, 
yet  he  would  be  entitled  to  recover  damages  for  a  breach  of  the  war- 
ranty, even  if  that  breach  were  unaccompanied  by  fraud. 

A  verdict  and  judgment  for  the  defendant  in  a  former  action  for  the 
same  cause  will  be  no  bar,  if  the  writing  on  which  the  action  is  founded 
was  excluded  in  the  first  case  from  going  in  evidence  to  the  jury,  on 
account  of  a  material  variance  from  that  described  in  the  declaration, 
and  the  verdict  and  judgment  for  the  defendant  was  in  consequence  of 
such  exclusion.     Crawford  Sfc.  v.  Jarrett's  admW,  2  Leigh  633. 

One  of  several  persons  guilty  of  a  joint  assault  and  battery  may  plead 
in  bar  of  a  recovery  against  him  a  judgment  obtained  against  another 
of  those  persons,  whether  the  judgment  was  obtained  against  that  other 
in  an  action  brought  against  him  separately,  or  in  an  action  brought 
against  the  whole  jointly.  Ammonctt  v.  Harris  S^c.  1  Hen.  &  Munf. 
488.  Wilhes  v.  Jackson,  2  Id.  355. 

30.  Plea  of  limitation  prescribed  by  act  in  1  R.  C.  1819,  p.  488. 
§  4.  cited  in  1  Rob.  Prac.  79. 

And  the  said  defendant  by  his  attorney  con[]es  and  defends 
the  wrong  and  injury,  when  &c.  and  says,  that  the  plaintiff 
ought  not  to  have  or  maintain  his  action  against  him  the  said 
defendant,  because  he  says,  that  the  said  action  was  not  com- 
menced within  five*  years  next  after  the  cause  of  the  said  ac- 
tion.    And  this  &c.  (Uke  No.  21.) 

*  The  limitation  prescribed  for  actions  of  trespass  of  assault,  battery, 
wounding,  imprisonment,  or  any  of  them,  is  three  years ;  and  the  limi- 
tation of  an  action  upon  the  case  for  words  is  one  year. 


Pleas  in  bar  and  other  proceedings  till  issue.  79 

31.  Plea  of  limitation  prescribed  by  act  in  1  R.  C.  1819,  p.  489. 
§  7.  {cited  in  1  Rob.  Prac.  105.)  and  the  amendment  thereof  in 
Acts  of  1838,  p.  74.  ch.  95.  '^  5. 

and  says,  that  the  said  action  is  upon  a  store  account 

for  goods,  wares  and  merchandise  sold  and  delivered,  and  the 
same  was  not  brought  within  two  years  next  after  the  cause  of 
the  said  action  accrued.     And  this  &c.  (like  No.  21.) 

32.  Plea  of  limitation  prescribed  by  act  in  1  R.  C.  1819,  p.  492.  <^  16. 
cited  in  1  Rob.  Prac.  111.   Aijlett's  ex'or  v.  Robinson,  9  Leigh  45. 

and  says,  that  the  said  action  is  brought  against  him  as 


executor  {or,  administrator)  as  aforesaid,  for  the  recovery  of  a 
debt  due  upon  an  open  account,  and  the  items  of  the  said  ac- 
count appear  to  have  been  due  five  years  before  the  death  of 
this  defendant's  testator  {or,  intestate.)  And  this  &c.  (like 
No.  21.)  X 

33.  Plea  of  limitation  'prescribed  by  act  of  March  8.  1826,  ^  1. 

cited  in  1  Rob.  Prac.  115. 

(Like  No.  22,  to)  because  he  says,  that  this  action  was 

not  instituted  or  brought  within  ten  j^ears  next  after  the  right 
and  cause  of  action  accrued.     And  this  &c.  (like  No.  21.) 

34.  Plea  of  limitation  'prescribed  by  act  of  February  28.  1828,  cited 

in  1  Rob.  Prac.  116. 

(Like  No.  22,  to) because  he  says,  that  this  suit  was  not 

commenced  within  seven  years  after  the  date  of  the  said  in- 
demnifying bond.     And  this  &c.  (like  No.  21.) 

35.  Plea  under  act  limiting  recoveries  on  judgments  in  other  states. 

Sess.  Acts  1835-6,  p.  42.  ch.  62.  §  1. 

because  he  says,  that  on  the day  of an  act 


was  passed  by  the  general  assembly  of  the  said  state  of 
which  took  effect  from  and  after  the  passage  thereof,  and  still 
exists  and  is  in  force  in  that  state,  whereby  it  was  enacted  and 
declared  that  all  actions  brought  upon  judgments  rendered  in 
the  said  state  shall  be  commenced  within  ten  years  from  the 
date  of  the  last  execution  which  may  have  issued  upon  the  judg- 
ment, and  if  no  execution  shall  have  issued  upon  the  judgment, 
then  within  ten  years  next  after  the  date  of  such  judgment,  and 
not  after ;  and  upon  the  judgment  on  which  this  action  is  founded, 


80  Pleas  in  bar  and  other  proceedings  till  issue. 

no  execution  was  ever  issued,  and  the  said  action  was  not  com- 
menced within  ten  years  next  after  the  date  of  the  said  judg- 
ment;  and  by  the  laws  of  the  said  state  of ,  the  act 

aforesaid,  limiting  the  recovery  on  judgments  rendered  therein, 
might  and  could  have  been  pleaded,  had  this  action  been  brought 
in  any  court  thereof,  and  a  recovery  in  this  action  would  have 
been  barred,  had  the  same  been  instituted  in  any  of  the  courts 
of  that  state.     And  this  &c.  (Uke  No.  21.) 

36.  Plea  under  second  section  of  same  act. 

because  he  says,  that  upon  the  judgment  on  which  this 


action  is  brought,  no  execution  hath  ever  issued,  and  this  action 
was  not  brought  within  ten  years  next  after  the  date  of  the  said 
judgment,  and  he  the  said  defendant  has  been  actually  and  Jowa 
Jide  resident  within  this  commonwealth  for  ten  years  after  the 
said  judgment  was  rendered,  and  before  the  commencement  of 
this  action.     And  this  &c.  (like  No.  21.) 

37.  Concerning  pleas  by  an  executor  or  administrator  in  respect  to 

the  assets. 

The  plea  o^  fully  administered  must  allege  that  there  were  no  assets 
in  the  hands  of  the  defendant  to  be  administered,  either  at  the  time  of 
the  commencement  of  the  action  or  at  any  time  since.  Hence,  if  at  the 
institution  of  the  suit  there  be  outstanding  debts  of  superior  dignity,  or 
unsatisfied  judgments,  and  the  defendant  actually  pays  them  before 
pleading  fully  administered,  those  payments  will  be  embraced  by  the 
plea.  So  if  assets  come  to  the  defendant's  hands  after  the  commence- 
ment of  the  suit  and  before  pleading  plena  administravit,  the  defendant 
will  be  chargeable  upon  such  plea  with  those  assets.  Green,  J.  in  Gard- 
ner's adm'r  v.  Vidal,  6  Rand.  107.  But  no  enquiry  can  be  made,  in 
such  suit,  as  to  the  assets  received  after  the  time  of  pleading  the  plea 
of  plene  administravit.     Same  judge. 

If  a  suit  be  brought  against  an  administrator  for  a  debt  of  his  intes- 
tate, and  the  assets  are  insufficient  to  pay  the  debt,  excluding  certain 
property  in  the  possession  of  the  administrator  which  had  been  conveyed 
by  his  intestate  by  deed  of  trust  to  secure  certain  sums  of  money  re- 
maining unpaid,  the  administrator,  in  order  to  avail  himself  of  this  mat- 
ter, must  plead  the  facts  specially.  If  he  put  in  a  general  plea  of  fully 
administered,  he  cannot  give  the  deed  in  evidence  under  that  plea. 
Taylor  v.  Richards,  2  Munf  8. 

38.  Plea  of  no  assets.     1  Rob.  Prac.  213.     Reeves  Sfc.  v.  Wardh 
ex'x  2  Bingh.  N.  C.  235.  29  Eng.  Com.  Law  Rep.  316. 

And  for  a  further  plea  in  this  behalf,  the  said  J.  S.  by  leave 
of  the  court  here  for  this  purpose  first  had  and  ohtained,  ac- 


Pleas   in  bar  and  other  proceedings  till  issue.  81 

cording  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, says,  that  the  said  T.  F.  ought  not  to  have  or  maintain 
his  aforesaid  action  thereof  against  him  the  said  J.  S.  because 
he  says,  that  he  has  not,  and  had  not  at  the  commencement  of 
this  suit,  or  at  any  time  since,  any  goods  or  chattels  which  were 
of  the  said  R.  S.  deceased  at  the  time  of  his  death,  in  the  hands 
of  him  the  said  J.  S.  as  executor  as  aforesaid,  to  be  adminis- 
tered. And  this  he  is  ready  to  verify.  Wherefore  he  prays 
judgment  &c.  (like  No  21.) 

Note.  The  precedents  are  that  the  executor  has  fully  administered, 
in  addition  to  the  allegations  of  this  plea.  Serjeant  Williams,  however, 
says  that  the  words  "  that  they  have  fully  administered  the  goods"  &,c. 
seem  to  be  superfluous,  and  suggests  that  the  more  formal  and  correct 
way  of  pleading  is  according  to  this  plea.  2  Saund.  221.  note  3.  And 
although  Chitty,  in  his  form  of  the  plea,  inserts  those  words,  yet  the 
replication,  as  given  by  him,  takes  issue  on  the  defendant's  having  assets 
in  his  hands  to  be  administered,  on  the  day  of  exhibiting  the  bill ;  which 
shews  that  the  essential  part  of  the  plea  is  the  possession  of  unadminis- 
tered  assets.  In  the  case  of  Fowler  v.  Sharp  S^c.  15  Johns.  323.  the 
plaintiff  demurred  specially  to  the  plea,  and  assigned  for  cause,  that  it 
was  not  alleged  therein  that  the  defendant  had  fully  administered,  &-c. 
But  the  court,  after  argument,  decided  that  this  was  not  a  defect  either 
in  substance  or  form,  and  overruled  the  demurrer.  The  form  here 
given  is  taken  from  the  plea  in  that  case. 

The  plea  should  not  conclude  to  the  country.  Eppes's  adm'rs  v.  JBag- 
lei/'s  adm'r,  4  Munf  466. 

39.  Plea  of  no  assets  prceter.     1  Rob.  Prac.  213. 

ought  not  to  have  or  maintain  his  action  thereof  against 

him,  except  as  to  $ ,  because  he  says  that  he  has  not  &c. 

to  be  administered,  except  the  said  sum  of  $ .    And  this 

he  the  said  J.  S.  is  ready  to  verify.  Wherefore  he  prays  judg- 
ment if  the  said  T.  F.  ought  to  have  or  maintain  his  aforesaid 
action  thereof  against  him  the  said  J.  S.  except  as  to  the  said 
sum  of  $ . 

40.  Plea  of  debts  of  superior  dignity  to  a  greater  amount  than  the 
assets  in  hand.     1  Rob.  Prac.  213. 

ought  not  further  to  have  or  maintain  his  aforesaid  ac- 
tion thereof  against  them,  because  they  say,  that  after  the  death 
of  the  said  W.  C.  to  wit,  on  the  19th  day  of  February  1829, 
one  E.  J.  impleaded  the  said  defendants  as  executors  as  afore- 
said, in  this  court,  in  a  certain  plea  of  debt  for  the  sum  of 
$  867.89  cents  due  and  owing  to  the  said  E.  J.  from  the  said  W. 
11 


9S  Pleas  in  bar  and  other  proceedings  till  issue. 

C.  upon  a  certain  writing  obligatory  sealed  with  the  seal  of  the 
said  W.  C.  in  his  lifetime,  and  such  proceedings  were  thereupon 
had  in  this  court  in  that  plea,  that  the  said  E.  J.  afterwards,  to 
wit,  on  the  21st  day  of  February  in  the  year  last  aforesaid,  by 
the  consideration  and  judgment  of  this  court,  recovered  against 
the  said  defendants,  as  executors  as  aforesaid,  her  said  debt  of 
$867.89  cents,  with  interest  thereon  after  the  rate  of  six  per 
centum  per  annum  from  the  11th  day  of  August  1828  till  pay- 
ment, and  also  $  5.67  cents  for  her  costs  by  her  about  her  suit 
in  that  behalf  expended,  to  be  levied  of  the  goods  and  chattels 
of  the  said  W.  C.  deceased  in  the  hands  of  the  defendants  to  be 
administered. 

And  the  said  defendants  further  say,  that  after  the  death  of 
the  said  TV.  C.  to  wit,  on  the  17th  day  of  November  1828,  one 
W.  D.  W.  impleaded  &c.  (stating  the  proceedings  and  judg- 
ment in  like  manner  as  before.) 

And  the  said  defendants  say  that  the  several  judgments  herein 
before  mentioned,  fully  appear  by  the  record  and  proceedings 
thereof  remaining  in  this  court;  and  that  the  said  several  judg- 
ments still  remain  in  full  force  and  unsatisfied. 

And  the  said  defendants  further  say,  that  the  said  W.  C.  in 
his  lifetime,  to  wit,  on  the  6th  day  of  April  1825,  at  the  city  of 
jR.  aforesaid,  by  his  certain  writing  obligatory  sealed  with  his 
seal,  promised  to  pay,  on  or  before  the  first  day  of  July  next 
ensuing  the  date  thereof,  to  one  G.  W.  C.  the  just  and  full  sum 
of  $  1000.  lawful  money  of  the  United  States,  for  the  true  pay- 
ment whereof  he  bound  himself,  his  heirs,  executors  and  ad- 
ministrators, firmly  by  the  said  writing  obligatory ;  which  said 
writing  obligatory  was  so  made  as  aforesaid  for  securing  the 
payment  of  a  just  debt,  and  at  the  time  of  the  death  of  the 
said  W.  C.  was,  and  still  is,  in  full  force  and  effect,  not  in  any 
wise  cancelled  or  annulled,  and  before  and  at  the  time  of  the 
commencement  of  this  suit  there  was,  and  still  is,  due  and  ow- 
ing to  the  said  G.  W.  C.  upon  and  by  virtue  of  the  said  writing 
obligatory,  a  large  sum  of  money,  to  wit,  the  sum  of  $  931.96 
cents  with  interest  thereon  after  the  rate  of  six  per  centum  per 
annum  from  the  24th  day  of  July  1828  till  payment. 

And  the  said  defendants  further  say,  that  they  have  not  at 
this  time  any  goods  and  chattels  which  were  of  the  said  W.  C. 
deceased  at  the  time  of  his  death,  in  their  hands  to  be  admi- 
nistered, except  goods  and  chattels  of  less  value  than  is  sufficient 
to  satisfy  the  money  due  and  owing  on  the  several  judgments 
aforesaid  and  on  the  writing  obligatory  aforesaid,  to  wit,  of  the 

value  of  $ ,  which  goods  and  chattels  are  subject  and 

liable  to  satisfy  the  said  judgments  and  the  said  writing  obliga- 
tory. And  this  they  the  said  defendants  are  ready  to  verify. 
Wherefore   they   pray  judgment   if  the   said    plaintiff  ought 


Pleas  in  bar  and  other  proceedifigs  till  issue.  83 

further  to  have  or  maintain  his  aforesaid  action  thereof  against 
them  &c. 

41.  Plea  under  act  of  March  8.  1826,  ^  2.  that  distribution  has 
been  made  of  estate,  and  refujidi?ig  bonds  taken.  1  Rob.  Prac. 
68.  115. 

ought  not  to  have  or  maintain  his  action  thereof  against 

him,  because  he  says,  that  after  the  expiration  of  one  year  from 
the  time  of  his  qualification  as  administrator  as  aforesaid,  he 
made  distribution  of  the  estate  of  his  intestate  to  E.  F.  and  G. 
H.  the  distributees  entitled  thereto,  and  took  from  them  refund- 
ing bonds  with  sufficient  security,  which  have  been  duly  filed 
in  the  clerk's  office  of  the  county  court  of  H.  by  which  court 
this  defendant's  letters  of  administration  were  granted;  and  at 
the  time  of  making  such  distribution,  this  defendant  was  not 
apprized,  either  by  the  institution  of  a  suit  or  by  a  notice  in 
writing,  of  the  existence  of  the  claim  asserted  in  this  action. 
And  this  &c.  (concluding  like  other  pleas  with  a  verification.) 

42.  Plea  by  an  heir,  of  riens  per  discent.     1  Rob.  Prac.  216. 

And  the  said  defendant  by  his  attorney  comes  and  defends 
the  wrong  and  injury,  when  &c.  and  says,  that  he  ought  not  to 
be  charged  with  the  said  debt  by  virtue  of  the  said  supposed 
writing  obligatory,  because  he  says,  that  he  the  said  defendant, 
neither  at  the  time  of  the  commencement  of  this  suit,  nor  at  any 
time  before  or  since,  had  any  lands,  tenements  or  hereditaments 
from  the  said  E.  F.  his  father,  in  fee  simple.  And  this  he  is 
ready  to  verify.  Wherefore  he  prays  judgment  if  he,  as  son 
and  heir  of  the  said  E.  F,  deceased,  ought  to  be  charged  with 
the  said  debt  by  virtue  of  the  said  writing  obligatory. 

43.  Plea  of  tender. 

A  plea  of  tender  is  bad  in  form,  if  the  day  of  the  tender  is  left  blank. 
So  also  if  the  defendant  pleads  that  he  offered  the  principal  ^53.  and 
all  the  interest  due  thereon,  instead  of  computing  the  interest  to  the  day 
of  tender,  adding  it  to  the  principal,  and  saying  that  he  offered  a  sum 
certain.  So  likewise  if  the  plea  be  that  the  defendant  was  always  ready 
from  the  time  of  the  tender  (which  was  12  years  afler  the  day  when  the 
money  was  payable)  instead  of  from  the  time  when  payment  should  have 
been  made.  Opinion  of  the  court  in  Dotonman  v.  Downman's  ex'ors, 
1  Wash.  28.     Skipwith  V.  Morton  ^  Co.  2  Call  277. 

A  tender  may  be  given  in  evidence  under  the  plea  of  payment,  in  or- 
der to  extinguish  the  interest  subsequent  to  the  tender.  Opinion  of 
court  in  Skipwith  v.  Morton  Sf  Co.  2  Call  277. 


8'4  Pleas  iji  bar  and  other  proceedings  till  issue. 

If,  however,  the  tender  be  of  a  less  sum  than  is  justly  due,  it  will  not 
prevent  the  subsequent  recovery  of  interest  on  the  sum  so  tendered, 
from  the  time  of  the  tender.  Shube's  ex'ors  v.  Carr  and  tcife,  3 
Munf.  10. 

44.   Concerning  replications. 

Where  a  plea  concludes  with  a  verification,  the  plaintiff  cannot,  regu- 
larly, take  issue  directly  upon  the  plea,  but  only  by  a  general  replication 
concluding  to  the  country ;  and  then  the  issue  may  be  made  up  by  ad- 
ding the  similiter.     Green,  J.  in  Reed  v.  Hanna's  ex'or,  3  Rand  59. 

Though  there  be  no  formal  negative  and  affirmative,  yet  if  the  repli- 
cation deny  the  whole  substance  of  the  plea,  the  conclusion  may  be  to 
the  country.     Carthrae  S^c.  v.  Clarice,  5  Leigh  268. 

Although  matter  of  record  be  pleaded,  yet  if  such  matter  be  not  the 
foundation  of  the  action,  but  wholly  collateral,  it  is  not  necessary  that 
there  should  be  a  verification  by  the  record,  with  a  conclusion  to  the 
court.  White  v.  Clay's  ex'ors,  7  Leigh  68.  was  debt  on  an  injunction 
bond.  The  defendant  pleaded  that  the  injunction  cause  was  still  pend- 
ing on  a  bill  of  review  in  the  court  of  appeals,  concluding  with  a  veri- 
fication ;  plaintiff  replied  that  the  bill  of  review  mentioned  in  the  plea 
had  been  decided  by  the  court  of  appeals,  concluding  to  the  country ; 
and  issue  was  joined  :  on  which  verdict  was  found  for  the  plaintiff,  and 
judgment  rendered  thereupon. 

Where  the  replication  does  not  deny,  but  avoids  the  allegations  of  the 
plea,  the  conclusion  to  the  court  is  proper.  Wilson  v.  Codman's  ex'or, 
3  Cranch  208,  9. 

In  debt  on  a  bond,  the  declaration  was  filed  in  the  name  of  R.  G. 
and  G.  L.  against  A.  S. ;  the  defendant  pleaded  conditions  performed; 
and  a  replication  was  filed,  commencing  in  the  name  of  R.  G.  v.  A.  S. 
To  this  replication  the  defendant  demurred  specially,  because  the  same 
was  no  answer  to  the  plea,  as  it  respected  G.  L.  one  of  the  plaintiffs. 
The  court  of  appeals  said,  that  it  did  not  appear  that  the  replication  re- 
lated to  the  bond  in  the  declaration  mentioned,  as  it  purported  to  relate 
to  a  suit  by  R.  G.  only,  whereas  the  bond  stated  in  the  declaration  was 
shewn  to  have  been  given  to  R.  G.  and  G.  L.  The  replication  was 
therefore  considered  a  departure  from  the  declaration,  and  judgment 
was  given  for  the  defendant  on  the  demurrer.  Graham  Sf  Scott  v. 
Graham  Sf  Lane,  4  Munf  205. 

In  debt  on  bond,  the  defendant  pleaded  that  at  the  time  of  executing 
the  bond  she  was  a  feme  covert ;  and  the  plaintiff  replied  that  at  that 
time  her  husband  had  abjured  the  commonwealth,  and  was  not  then  or 
now  a  citizen  thereof  This  replication,  however  understood,  was  whol- 
ly defective.  If  it  intended  to  rely  upon  the  common  law  abjuration  of 
the  realm,  that  never  existed  here,  or  if  it  did,  it  could  only  be  proved 
by  a  record  taken  by  a  coroner,  and  by  him  certified  to  the  proper  court ; 
and  it  should  have  been  verified  by  the  record.  If  it  intended  to  rely 
upon  the  expatriation  of  the  husband  under  our  statute,  it  should  have 
been  shewn  how  he  expatriated  himself, — by  a  recorded  declaration  by 
deed,  or  in  open  <;ourt, — and  that  he  had  departed  from  the  common- 
wealth ;  and  even  that  would  not  have  been  sufficient,  without  the  far- 


Pleas  in  bar  and  other  'proceedings  till  issue.  85 

ther  allegation  that  he  resided  abroad  at  the  time  of  the  execution  of 
the  bond  by  the  wife.  The  demurrer  of  the  defendant  to  the  replication 
was  therefore  sustained.     Branch  v.  Bowman,  2  Leigh  170. 

45.   General  replication  to  plea  of  usury.* 

And  the  plaintifTs,  as  to  the  plea  of  the  defendants  by  them 
first  above  pleaded,  say,  that  they,  by  reason  of  any  thing  in 
that  plea  alleged  by  the  defendants,  ought  not  to  be  barred  from 
having  and  maintaining  their  aforesaid  action  thereof  against 
them,  because  they  say,  that  the  said  deed  in  the  declaration 
mentioned  was  made  by  the  said  W.  M.,  C.  C,  J.  C.  S.  and 
jR.  N.  for  a  good  and  legal  consideration,  and  not  in  pursuance  of 
or  upon  the  said  corrupt  and  unlawful  agreement,  or  for  the  pur- 
pose in  the  said  first  plea  of  the  defendants  mentioned,  in  man- 
ner and  form  as  the  defendants  in  their  said  first  plea  in  that 
behalf  have  alleged.  And  this  they  pray  may  be  enquired  of 
by  the  country  ;  and  the  defendants  likewise. 

*  This  is  a  copy  of  the  replication  filed  to  the  first  plea  in  Steptoe's  adm'rs  v.  Har- 
vey's ex'ors,  7  Leigh  501.  with  the  defendants'  similiter  thereto. 

46.  General  replication  to  plea  that  action  was  not  commenced  in 

time.     1  Rob.  Prac.  79. 

And  the  said  plaintiff,  as  to  the  said  plea  of  the  said  defen- 
dant by  him  above  pleaded  {or,  by  him  secondly  above  pleaded) 
saith,  that  he  the  said  plaintiff,  by  reason  of  any  thing  by  the 
said  defendant  in  that  plea  alleged,  ought  not  to  be  barred  from 
having  and  maintaining  his  aforesaid  action  thereof  against  him 
the  said  defendant,  because  he  saith,  that  the  said  action  was 
commenced  within  five  years  next  after  the  cause  of  the  said 
action.  And  this  he  the  said  plaintiff  prays  may  be  enquired  of 
by  the  country. 

47.  To  plea  that  action  was  not  commenced  in  time,  special  replica- 
tion as  to  one  count,  that  account  concerns  the  trade  of  merchandise 
between  merchant  and  merchant ;  and  general  replication  as  to  two 
counts.  1  Rob.  Prac.  101  to  105.  Watson  v.  LyWs  admW,  4 
Leigh  236.  Robinson  v.  Alexander,  8  Bligh  N.  S.  352. 

And  the  said  plaintiffs,  as  to  the  said  plea  of  the  said  defen- 
dant by  him  secondly  above  pleaded,  say,  that  they  the  said 
plaintiffs,  by  reason  of  any  thing  by  the  said  defendant  in  that 
plea  alleged,  ought  not  to  be  barred  from  having  and  maintain- 
ing their  action  against  the  defendant,  because,  as  to  so  much 
of  the  said  plea  as  relates  to  the  promise  and  undertaking  men- 


86  Pleas  in  bar  and  other  proceedings  till  issue, 

tioned  in  the  first  count,  the  said  plaintiffs  sa)',  the  nioneys  men- 
tioned in  the  said  promise  and  undertaking,  at  the  time  of  the 
said  promise  and  undertaking,  became  due  and  payable  on  an 
account  current  between  the  said  B.  S.  and  T.  M.  as  merchants 
in  the  state  of  Virginia,  and  the  said  plaintiffs  as  merchants  in 
London  in  the  kingdom  of  Great  Britain,  acting  as  factors  of  the 
said  S.  and  M.  and  the  said  account  was  wholly  concerning  the 
trade  of  merchandise  between  the  said  S.  and  M.  as  merchants, 
and  the  said  plaintiffs  as  merchants  and  factors  as  aforesaid. 
And  this  the  said  plaintiffs  are  ready  to  verify.  Wherefore  they 
pray  judgment,  and  their  damages  by  them  sustained  by  occa- 
sion of  the  nonperformance  of  the  said  promise  and  undertaking 
mentioned  in  the  said  first  count,  to  be  adjudged  to  them  &c. 
And  the  said  plaintiffs,  as  to  the  residue  of  the  said  plea  of  the 
said  defendant,  say,  that  the  said  several  causes  of  action  men- 
tioned in  the  second  and  third  counts  of  the  said  declaration, 
did  accrue  to  them  the  said  plaintiffs  within  five  years  next  be- 
fore the  commencement  of  this  suit.  And  this  the  said  plain- 
tiffs pray  may  be  enquired  of  by  the  country. 

48.  To  plea  that  action  on  store  account  was  not  commenced  in  two 
years,  special  replication  that  party  died  before  the  two  years  ex- 
pired, and  suit  was  brought  in  one  year  from  his  death.  1  Rob. 
Prac.  105. 

And  the  said  plaintiff  &c.  (as  in  No.  46.)  because  he  saith,  that 
before  the  expiration  of  the  said  term  of  two  years  the  said  E. 
F.  died,  and  this  action  was  commenced  within  one  year  from 
his  death.  And  this  the  said  plaintiff  is  ready  to  verify.  Where- 
fore he  prays  judgment,  and  his  damages  by  him  sustained  by 
occasion  of  the  nonperformance  of  the  said  several  promises  and 
undertakings  in  the  said  declaration  mentioned,  to  be  adjudged 
to  him  &c. 

49.  To  plea  that  action  was  not  commenced  in  five  years,  special  re- 
plication that  plaintiff^s  intestate  was  non  compos  till  his  death, 
and  action  was  brought  in  five  years  after  that  time.  1  Rob.  Prac. 
107,  8.  Marsteller  Sfc.  v.  M' Clean,  7  Cranch  156. 

And  the  said  plaintiff  &c.  (as  in  No.  46.)  because  he  saith, 
that  at  the  time  when  the  said  cause  of  action  in  the  declaration 
mentioned  accrued,  the  said  E.  F.  the  person  then  entitled  to 
the  said  action,  was  non  compos  mentis,  and  so  continued  until  the 

time  of  his  death,  which  happened  on  the day  of ,  and 

after  his  death  administration  of  the  estate  of  the  said  E.  F. 
was  granted  to  the  plaintiff,  and  the  said  plaintiff  brought  this 
action  within  five  years  after  the  death  of  the  said  E.  F.     And 


Pleas  in  bar  and  other  "proceedings  till  issue.  87 

this  the  said  plaintiff  is  ready  to  verify.  Wherefore  he  prays 
judgment,  &c.  (concluding  according  to  the  nature  of  the  case.) 

If  in  assumpsit — concluding  like  the  last. 

If  in  debt — and  his  debt  aforesaid,  together  with  his  damages 
by  him  sustained  by  occasion  of  the  detention  thereof,  to  be  ad- 
judged to  him  &c. 

50.  To  jjlea  that  action  was  not  commenced  in  time,  special  replication 
that  defendant,  by  removal  out  of  the  country,  obstructed  the  plain- 
tiff from  bringing  the  action.  1  Rob.  Prac.  108,  9.  115,  16. 
Wilkinson  ^  Co.  v.  Holloway,  7  Leigh  277. 

And  the  said  plaintiff  &c.  (as  in  No.  46.)  because  he  sailh, 
that  the  said  defendant,  by  removal  out  of  the  country  when  the 
said  cause  of  action  accrued,  defeated  and  obstructed  the  plain- 
tiff from  bringing  and  maintaining  his  aforesaid  action  within  the 
time  limited  by  the  act  for  limitation  of  actions.  And  this  the 
said  plaintiff  is  ready  to  verify.  Wherefore  the  said  plaintiff 
saith,  that  the  said  defendant  ought  not  to  be  admitted  to  plead 
the  said  act  in  bar  to  this  action,  and  he  prays  judgment  &c. 
(as  last.) 

51.  To  plea  of  riens  per  discent,  special  replication  under  the  statute. 

1  Rob.  Prac.  220. 

And  the  said  plaintiff  &c.  (as  in  No.  46.)  because,  according 
to  the  form  of  the  statute  in  such  case  made  and  provided,  he 
says  that  the  said  defendant,  after  the  death  of  the  said  E.  F. 
his  father,  and  before  the  commencement  of  this  suit,  to  wit,  on 
&c.  had  divers  lands,  tenements  and  hereditaments  by  descent 
from  his  said  father,  to  wit,  at  &c.  aforesaid.  And  this  he  the 
said  plaintiff  is  ready  to  verify.  Wherefore  he  prays  judgment, 
and  his  debt  aforesaid,  together  with  his  damages  by  him  sus- 
tained by  occasion  of  the  detention  thereof,  to  be  adjudged  to 
him  &c. 

52.  Entry  of  ofice  Judgment  set  aside  by  pleading  to  issue. 
1  Rob.  Prac.  205. 

The  defendant,  by  his  attorney,  pleads  that*  &c.  (here  state 
the  plea,  if  it  be  ore  tenus.)  Or:  The  defendant,  by  his  attor- 
ney, filed  a  plea  in  writing  {or, pleas  in  writing.)  Where- 
upon, on  the  motion  of  the  said  defendant,  it  is  ordered  that  the 
judgment  entered  in  the  office  against  him  be  set  aside. 

*  For  example,  in  detinue  (1  Rob.  Prac.  SO.  212.  218.) that 

he  doth  not  detain  the in  the  declaration  mentioned,  in 


88  Pleas  in  bar  and  other  proceedings  till  issue. 

manner  and  form  as  the  plaintiff  has  complained,  and  of  this  he 
puts  himself  upon  the  country;  and  the  plaintiff  likewise. 

In  trespass  (1  Rob.  Prac.  212,  13.  218.)  that  he  is  not 

guilty  {or,  that  the  said  G.  H.  deceased  in  his  lifetime  was  not 
guihy)  of  the  trespasses  laid  to  his  charge,  in  manner  &c.  (as  in 
detinue.) 

In  assumpsit  (1  Rob.  Prac.  210.  213.  218.) that  he  did  not 

undertake  or  promise  {or,  that  the  said  G.  H.  deceased  in  his 
lifetime  did  not  undertake  or  promise)  in  manner  &c. 

In  debt  on  simple  contract  (1  Rob.  Prac.  207,  8.  213.  218.) 

that  he  does  not  owe  {or,  if  the  defendant  be  an  executor  or  admi- 
nistrator, that  he  does  not  detain)  the  sum  of  money  (or,  the  prin- 
cipal and  interest — or,  the  principal,  interest  and  charges  of  pro- 
test) demanded  in  the  declaration,  or  any  part  thereof,  and  of 
this  &c. 

53.  Entry,  at  the  time  of  pleading  non  assumpsit,  nil  debet,  or  nan 
detinct,  of  affidavit  as  to  signature  to  writing.  1  Rob.  Prac. 
207,  8. 

And  the  said  defendant,  at  the  time  of  so  pleading,  filed  an 
affidavit  that  the  writing  on  which  this  action  is  brought  was  not 
made  by  him.  Or  thus:  And  at  the  time  of  entering  the  said 
plea,  there  was  filed  an  affidavit  of  — — — ,  that  he  hath  good 
cause  to  believe,  and  does  believe,  that  the  writing  on  which  this 
action  is  brought  was  not  made  or  signed  by  the  said -. 

54.  Entry  of  plea  of  non  est  factum  and  issue  thereon.    1  Rob. 

Prac.  208.  218. 

The  defendant,  by  his  attorney,  offered  a  plea  of  non  est  fac- 
tum in  writing,  and  the  truth  thereof  being  proved  by  his  oath, 
the  said  plea  is  received,  and  the  plaintiff,  by  his  attorney,  joins 
issue  on  the  same. 

Or: 

The  defendant,  by  his  attorney,  offered  a  plea  of  non  est  fac- 
tum in  writing,  and  the  said  defendant  having  proved  by  his  oath, 
that  he  verily  believes  that  the  deed  on  which  the  action  is 
founded  is  not  the  deed  of  the  said  G.  H.  deceased,  the  said 
plea  is  received,  and  the  plaintiff,  by  his  attorney,  joins  issue  on 
the  same. 

55.  Declaration  demurred  to  ore  tenus,  and  joinder  in  demurrer. 

1  Rob.  Prac.  206,  223. 

The  defendant,  by  his  attorney,  says  that  the  plaintiff's  de- 
claration and  the  matters  therein  contained,  in  manner  and  form 


Pleas  in  bar  and  other  proceedings  till  issue.  89 

as  the  same  are  therein  stated  and  set  forth,  are  not  sufficient  in 
law  for  the  plaintiff  to  have  or  maintain  his  action  against  him 
the  defendant ;  and  the  plaintiff  says  that  the  same  are  sufficient 
for  him  the  said  plaintiff  to  have  and  maintain  his  said  action. 

56.  Plea  ore  tefiusy  that  action  was  not  commenced  within  Jive  years, 
general  replication  thereto,  and  issue.     1  Rob.  Prac.  206.  79. 

says,  that  the  plaintiff's  action  was  not  commenced 


within  five  years  next  after  the  cause  of  such  action ;  and  the 
plaintiff  replies  that  the  said  action  was  commenced  within  five 
years  next  after  the  cause  thereof,  and  this  he  prays  may  be  en- 
quired of  by  the  country ;  and  the  defendant  likewise. 

57.  Entry  of  plea  in  writing  being  filed  alleging  payment,  and  of 

replication  thereto,  and  isstie.     1  Rob.  Prac.  209. 

The  defendant,  by  his  attorney,  filed  a  special  plea  in  writing, 
pleading  payment  in  bar,  to  which  the  plaintiff,  by  his  attorney, 
replied  that  the  defendant  did  not,  before  action  brought,  pay 
the  principal  and  interest  due  by  the  condition  of  the  bond,  and 
this  he  prays  may  be  enquired  of  by  the  country ;  and  the  de- 
fendant likewise. 

58.  Entry  of  plea  in  writing  alleging  performance  of  covenants,  and 

of  replication  thereto,  and  issue.     1  Rob.  Prac.  211. 

pleading  performance  of  the  covenants  alleged  by  the 

plaintiff  to  have  been  broken,  to  which  plea  the  plaintiff,  by  his 
attorney,  replies  generally,  and  prays  that  the  matter  may  be 
enquired  of  by  the  country ;  and  the  defendant  doth  the  like. 

59.  Entry  of  replication  being  filed  to  special  plea.     1  Rob.  Prac. 

218.  220. 

The  plaintiff,  by  his  attorney,  to  the  second  plea  of  the  defen- 
dant replies  &c.  (or,  filed  a  replication  in  writing.) 

60.  Entry  of  replication  to  plea  of  payment  in  action  by  administra- 
tor of  a  surviving  partner,  and  issue  joined.  1  Rob.  Prac.  219. 
220. 

The  plaintiff,  by  his  attorney,  to  the  plea  of  payment  pleaded 

by  the  defendant,  replies  that  the  defendant  had  not,  before  this 

action  was  brought,  paid  the  said  principal  and  interest,  or  any 

part  thereof,  to  the  said  A.  B.  and  C.  D.  in  the  lifetime  of  the 

12 


90  Fleas  in  bar  and  other  proceedings  till  issue, 

latter,  or  to  the  said  A.  B.  after  the  death  of  the  said  C.  D.  or 
to  the  plaintiff  after  the  death  of  the  said  A.  B.  And  this  the 
said  plaintiff  prays  may  be  enquired  of  by  the  country ;  and 
the  defendant  likewise. 

61.  Entry  of  replication  to  plea  of  payment,  where  the  condition  is 
not  set  out  in  the  declaration,  and  oyer  is  not  prayed  ;  and  joinder 
of  issue.     1  Rob.  Prac.  219.  220. 

The  plaintiff  &c.  replies  that  the  defendant  did  not,  before 
this  action  was  brought,  pay  the  debt  in  the  declaration  men- 
tioned, or  any  part  thereof.  And  this  the  said  plaintiff  prays 
may  be  enquired  of  by  the  country ;  and  the  defendant  like- 
wise. 

62.  Entry  of  rejoinder  being  filed  to  special  replication,     1  Rob. 

Prac.  221. 

The  defendant,  by  his  attorney,  to  the  replication  of  the  plain- 
tiff to  his plea,  filed  a  rejoinder  in  writing  (or,  rejoins  ge- 
nerally, and  puts  himself  upon  the  country.) 

63.  Entry  of  issue  made  up  on  rejoinder.     1  Rob.  Prac.  221. 

The  plaintiff,  by  his  attorney,  to  the  rejoinder  of  the  defen- 
dant to  his  replication  to  the  plea  in  this  cause,  and  of 

which  the  said  defendant  hath  put  himself  upon  the  country, 
doth  the  like. 

64.  Entry  of  agreement  to  prevent  special  pleading.     1  Rob.  Prac. 

218. 

The  plaintiff,  by  his  attorney,  agrees  that  the  defendant  may 
give  in  evidence  under  the  general  issue  {or,  under  the  plea 
which  has  been  pleaded  in  this  cause)  any  matter  which  could 
be  given  in  evidence  under  any  special  plea  in  bar,  good  in 
law, 

65.  Entry  of  plea  fled,  demurrer  thereto,  and  joinder.     1  Rob. 

Prac.  223,  4. 

The  defendant  filed  a  special  plea  in  bar,  to  which  the  plain- 
tiff filed  a  demurrer,  and  the  defendant  joined  in  the  demurrer. 


Pleas  in  bar  and  other  proceedings  till  issue.  91 


66.  Entry  of  account  of  set-offs  being  filed  xoiih  plea.     1   Rob. 

Prac.  224.  227. 

After  entering  the  plea^  proceed  thus :  And  the  defendant  filed 
with  his  plea  an  account,  stating  the  nature  of  the  payments 
and  set-ofFs  which  he  desires  to  prove,  and  the  several  items 
thereof. 

67.  Entry  of  plea  of  tender,  and  money  brought  into  court.     1  Rob. 

Prac.  236. 

The  defendant,  by  his  attorney,  offered  a  plea  of  tender,  and 
the  money  tendered  being  brought  into  court,  the  said  plea  is 
received,  and  the  clerk  is  directed  to  deposit  the  money  in  the 
bank  of  Virginia  to  the  credit  of  this  suit,  subject  to  the  future 
order  of  the  court. 

68.  Entry  of  special  pleas  being  fled  under  act  of  April  16.  1831. 

1  Rob.  Prac.  229. 

The  defendant  tendered  three*  special  pleas  in  bar,  in  the 
nature  of  pleas  of  set-off,  under  the  statute  of  April  16.  1831 ; 
and  the  said  pleas  being  verified  by  affidavit  in  like  manner  as 
pleas  of  non  est  facium,i  the  same  are  received  and  filed. 

*  The  defendant  is  not  restricted  to  one  special  plea  under  this  statute.  Mitchell 
V.  Scott  <^c.     Circuit  court  of  Henrico  and  Richmond,  June  1840. 

t  If  the  plea  be  verified  by  an  affidavit  like  that  to  the  plea  of  non  est  factum 
in  Jackson  v.  Webster,  6  Munf.  462.  ciiedante,  p.  61.  the  verification  will  be  suffi- 
cient.    S.  C. 

69.  Entry  of  special  pleas  being  tendered  under  said  act,  and  not 
received  for  want  of  proper  affidavit.     1  Rob.  Prac.  229,  30. 

The  defendants  tendered  &c.  (as  last)  which  pleas  were  ve- 
rified by  the  affidavit  of  the  defendant  G.  but  there  being  no 
verification  by  the  defendant  S.  and  the  pleas  being  joint,  the 
same  are  not  admitted  to  be  filed. 

70.  Entry  of  special  pleas  under  said  act  being  rejected  because  not 

offered  in  time.     1  Rob.  Prac.  230. 

The  defendants  tendered  &c.  (as  in  No.  68.)  which  pleas  were 
verified  by  a  proper  affidavit ;  but  the  same  are  rejected  for  not 
having  been  offered  in  due  time. 


'&S  Pleas  in  bar  and  other  proceedings  till  issue. 

71.  Entry  of  special  pleas  under  said  act  being  rejected  as  itaught. 

1  Rob.  Prac.  230. 

The  defendant  &c.  (as  in  No.  6S.)  which  pleas  were  verified 
by  a  proper  affidavit ;  but  the  plaintiff  opposed  the  filing  of  the 
said  pleas,  upon  the  ground  that  the  matters  thereof  would  not 
entitle  the  defendant  either  to  recover  damages  at  law  from  the 
plaintiff,  or  to  relief  in  equity  against  the  obligation  of  the  con- 
tract upon  him  :  And  the  court,  after  hearing  the  arguments  of 
counsel,  being  of  that  opinion,  doth  therefore  reject  the  said  pleas 
as  naught. 

72.  Entry  of  demuirer  to  two  pleas  under  said  act,  with  joinder  ; 
and  general  replication  to  third  plea,  with  issue.  1  Rob.  Prac. 
230.' 

To  the  first  and  second  of  the  special  pleas  in  bar,  pleaded 
by  the  defendant,  the  plaintiff  demurs  generally,  so  as  to  sub- 
mit the  merits  of  the  said  pleas,  as  to  the  substance  thereof,  to 
the  judgment  of  the  court;  and  the  defendant  joins  in  the  said 
demurrer.  And  to  the  third  plea  the  plaintiff*  replies,  that  he 
ought  not  to  be  precluded  from  his  action  by  reason  of  the  mat- 
ters in  the  said  plea  set  forth,  in  manner  and  form  as  they  are 
therein  pleaded,  because  the  same  are  not  true ;  and  this  he 
prays  may  be  enquired  of  by  the  country ;  and  the  defendant 
likewise. 

73.  Additional  plea  offered,  and  objected  to,  but  allowed  to  be  filed. 

1  Rob.  Prac.  231. 

The  defendant,  by  his  attorney,  this  day  offered  an  additional 
special  plea  in  bar,  alleging  that  the  same  is  necessary  to  the 
defence  of  his  cause.  Whereupon  the  plaintiff,  by  his  attorney, 
opposed  the  filing  of  the  same,  upon  the  ground  that  it  would 
tend  to  delay  the  trial.  But  the  court,  being  of  opinion  that  the 
said  plea  is  essential  to  the  justice  of  the  case,  and  that  good 
reason  is  shewn  by  the  defendant  for  not  having  pleaded  it 
sooner,  doth  heretfore  allow  the  same  to  be  filed. 

74.  Additional  plea   rejected  because  delayed  too  long.     1  Rob. 

Prac.  232. 

The  defendant  &c.  Whereupon  the  plaintiff  &c.  (as  last.) 
And  the  court,  being  of  opinion  that  no  good  reason  appears 
why  the  said  plea  was  not  sooner  tendered,  doth  therefore  re- 
fuse to  allow  the  same  to  be  filed. 


Pleas  in  bar  and  other  proceedings  till  issue.  93 

75.  Additional  plea  rejected  because  the  matter  thexeof^ii^^iigeady  in 

issue.     1  Rob.  Prac.  233.    i -,»    "^i;  »,,;^ 

The  defendant,  by  his  attorney,  this  day  offered  an  additional 
special  plea  in  bar,  and  the  plaintiff",  by  his  attorney,  objected 
thereto  that  the  matter  thereof  was  already  put  in  issue,  and 
moved  that  the  same  should  be  rejected  :  Whereupon  the  court, 
being  of  opinion  that  the  facts  stated  in  the  said  plea  are  such 
as  might  be  given  in  evidence  on  the  general  issue  which  has 
been  heretofore  pleaded,  doth  therefore  reject  the  same. 

76.  Additional  pleas  rejected,  and  opinion  of  court  excited  to. 

White  V.  Toncray,  9  Leigh  347. 

The  defendant,  by  his  attorney,  this  day  offered  two  addi- 
tional special  pleas,  and  the  plaintiff",  by  his  attorney,  objected 
thereto,  and  moved  that  the  same  should  be  rejected  :  Where- 
upon, the  parties  being  heard,  it  is  ordered  that  the  said  pleas 
be  rejected.  To  which  opinion  of  the  court  the  defendant  ex- 
cepted, and  tendered  his  bill  of  exceptions,  which  was  received, 
signed  and  sealed  by  the  court,  and  ordered  to  be  made  part  of 
the  record  in  the  cause. 

77.  Improper  plea  set  aside.     Kemp  v.  Mundell  Sfc.  9  Leigh  12. 

The  plaintiff",  by  his  attorney,  this  day  moved  the  court  to  set 
aside  the  second  plea  in  this  cause,  upon  the  ground  that  the 
matter  thereof  could  not  properly  be  pleaded  in  this  action  ;  and 
the  court,  being  of  that  opinion,  accordingly  set  aside  the  said 
second  plea. 

78.  General  demurrer  Jiled  to  declaration,  after  other  pleas,     1  Rob. 

Prac.  232. 

The  defendant,  by  his  attorney,  in  addition  to  the  pleas  here- 
tofore pleaded  by  him,  this  day  filed  a  general  demurrer  to  the 
plaintiff"'s  declaration. 

79.  Leave  granted  to  amend  declaration,  and  cause  remanded  to 
rules.     1  Rob.  Prac.  233. 

On  the  motion  of  the  plaintiff"  by  his  attorney,  leave  is  grant- 
ed him  to  amend  his  declaration,  upon  condition  of  his  paying 
to  the  defendant  the  costs  occasioned  him  by  such  amendment. 
And  the  cause  is  remanded  to  the  rules,  for  further  proceedings 
to  be  had  therein. 


94  Pleas  in  bar  and  other  proceedings  till  issue. 

80.  After  argument  of  a  special  demurrer  to  a  plea,  leave  granted  to 
ame7id  the  same.     1  Rob.  Prac.  235. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  matter  of  law  arising  upon  the  plaintiff's  demurrer  to  the 
defendant's  plea  being  argued,  it  seems  to  the  court  that  there 
does  exist  in  the  said  plea  the  defect  which  is  specially  alleged 
in  the  demurrer  as  the  cause  thereof,  and  that  the  said  plea  is, 
for  that  cause,  insufficient  in  law  to  bar  and  preclude  the  plain- 
tiff from  having  and  maintaining  his  action  against  the  defen- 
dant. Whereupon  the  defendant  moved  for  leave  to  withdraw 
his  joinder  in  the  plaintiff's  demurrer,  and  to  amend  his  plea  ; 
and  the  leave  is  accordingly  granted  him,  upon  condition  of  his 
paying  the  plaintiff  the  costs  occasioned  him  by  such  amend- 
ment. 

81.  After  argument  of  demurrer  to  a  replication,  leave,  granted  to 

amend  the  same.     1  Rob.  Prac.  235,  6. 

arising  upon  the  defendant's  demurrer  to  the  plaintiff's 

replication  to  his  plea  being  argued,  it  seems  to  the  court  that 
the  said  replication  is  defective,  but  that  the  defect  is  only  in 
form.  Whereupon  the  plaintiff  moved  for  leave  to  withdraw 
his  joinder  in  the  said  demurrer,  and  to  amend  his  said  repli- 
cation ;  and  the  leave  is  accordingly  granted  him,  upon  condi- 
tion of  his  paying  the  defendant  the  costs  occasioned  him  by 
such  amendment. 

82.  Order  remxinding  a  cause  to  the  rides,  for  the  issues  to  be  made 

up.     1  Rob.  Prac.  222. 

Since  this  suit  was  placed  upon  the  court  docket,  pleadings 
having  been  filed,  upon  which  issues  are  not  made  up,  either  in 
law  or  in  fact,  it  is  ordered  that  the  cause  be  remanded  to  the 
rules,  to  be  there  further  proceeded  in. 

83.    Order  of  contimiance  at  the  costs  of  the  party  asking  it.  1  Rob. 

Prac.  250. 

On  the  motion  of  the  plaintiff  {or,  defendant)  by  his  attorney, 
it  is  ordered  that  this  suit  be  continued  till  the  next  term.  But 
the  continuance  is  at  the  costs  of  the  said  plaintiff  {or,  defen- 
dant.) 


Judgments  not  on  verdict.  95 


CHAPTER  XII. 

JUDGMENTS    NOT    ON    VERDICT. 


1.  Entry  of  judgment  in  the  office,  when  it  becomes  final.     1  Rob. 

Prac.  256,  7. 

The  judgment  obtained  at  the  rules  not  having  been  set  aside, 
and  the  plaintiff  being  now  entitled  to  a  final  judgment,  it  is 
therefore  considered  that  the  plaintiff  recover  against  the  defen- 
dant $200  the  debt  in  the  declaration  mentioned,  and  his  costs 
by  him  about  his  suit  in  this  behalf  expended.  And  the  said 
defendant  in  mercy  &c.  But  this  judgment  is  to  be  discharged 
by  the  payment  of  $  100,  with  interest  thereon  to  be  computed 

after  the  rate  of  six  per  centum  per  annum  from  the day 

of till  payment,  and  the  costs. 

Or — that  the  plaintiff  recover  against  the  defendant  $  200  the 
debt  (or,  parcel  of  the  debt)  in  the  declaration  mentioned,  with 
interest  thereon  &c.  from  &c.  till  payment,  and  his  costs  by  him 
&c. — mercy  &c. 

Or — that  the  plaintiff  recover  against  the  defendant  $  200, 
with  interest  thereon  &c.  from  &c.  till  payment,  the  debt  and 
interest  in  the  declaration  mentioned,  and  his  costs  by  &c. — 
mercy  &"c. 

2.  Where  goods  have  been  attached,  order  accompanying  judgment. 

1  Rob.  Prac.  258. 

And  it  is  ordered  that  the  sheriff  make  sale  of  the  goods 

by  him  attached,  and  out  of  the  money  arising  from  such  sale, 
satisfy  this  judgment,  if  the  money  be  sufficient ;  and  in  case 
there  be  any  surplus,  that  he  return  the  same  to  the  defendant. 
And  the  sheriff  is  required  to  return  an  account  of  the  sale  to 
the  court. 

3.  Entry  of  judgment  in  the  office,  when  it  becomes  final  against  one 
of  several  defendants.  1  Rob.  Prac.  258  to  261.  Sess.  Acts 
1839,  p.  42.  ch.  65. 

The  judgment  obtained  at  the  rules  against  the  defendant  D. 
not  having  been  set  aside,  and  the  plaintiff  being  now  entitled 


96  Judgments  not  on  verdict, 

to  a  final  judgment  against  him,  it  is  therefore  considered  that 
the  plaintiff  recover  against  the  said  defendant  D.  Sec.  (as  in 
No.  1.) 

4.  Nonsuit  in  an  ordinary  case.     1  Rob.  Prac.  261,  2. 

This  day  came  the  defendant  by  his  attorney,  and  the  plain- 
tiff, though  solemnly  called,  failed  to  come  and  prosecute  his 
suit:  v/herefore  the  said  plaintiff  is  nonsuited,  and  ordered  to 
pay  to  the  defendant  five  dollars  damages  according  to  law,  be- 
sides the  costs  by  the  said  defendant  about  his  defence  ex- 
pended. 

6.  Nonsuit  after  Jury  are  sworn  but  before  they  retire.  1  Rob.  Prac. 

261,  2. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit, 'A  B.  &c.  who  being  elected,  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined,  the  plaintiff  was 
solemnly  called,  but  failed  to  come  &c.  (as  before.) 

6.  Discontinuance  by  plaintiff  after  defendant's  appearance.    1  Rob. 

Prac.  262. 

This  day  came  the  parties  by  their  attorneys,  and  the  plain- 
tiff not  prosecuting  this  suit  farther,  but  desiring  the  same  to  be 
discontinued,  it  is  ordered  that  he  be  nonsuited,  and  pay  to  the 
defendant  five  dollars  damages  according  to  law,  besides  the 
costs  by  the  said  defendant  about  his  defence  expended. 

7.  Retraxit.     1  Rob.  Prac.  262,  3. 

This  day  came  the  plaintiff  in  his  proper  person,  and  here  in 
open  court  he  acknowledges  that  he  cannot  support  his  action, 
and  voluntarily  withdraws  the  same,  and  renounces  the  cause 
thereof:  wherefore,  on  the  motion  of  the  defendant  by  his  attor- 
ney, it  is  considered  by  the  court  that  the  plaintiff  take  nothing 
by  his  bill,  but  for  his  false  clamor  be  in  mercy  &c.  and  that  the 
defendant  go  thereof  without  day,  and  recover  against  the  plain- 
tiff his  costs  by  him  about  his  defence  expended. 

8.  Discontinuance  by  consent,  without  damages  or  costs. 

This  day  came  the  parties  by  their  attorneys,  and  the  plain- 
tiff, not  caring  to  prosecute  this  suit  farther,  consents  that  the 
same  may  be  discontinued,  provided   there  be   no  judgment 


Judgments  not  on  verdict.  97 

against  him  for  damages  or  costs;*  and  the  defendant  agreeing 
thereto,  the  said  suit  is  discontinued  accordingly. 

*  If  only  the  damages  be  relinquished,  omit  here  the  words  "  or 
costs,"  and  after  the  words  "  the  said  suit  is  discontinued  accordingly," 
add  these  words :  "  and  it  is  ordered  that  the  plaintiff  pa.y  unto  the  de- 
fendant his  costs."    V 

9.  Principal  and  interest  brought  into  court,  and  Judgment  entered 

only  for  costs.     1  Rob.  Prac.  256.  404. 

The  defendant  this  day  brought  into  court  $  110.13  cents,  the 
amount  of  the  principal  and  interest  due  upon  the  bond  on  which 
this  action  is  brought :  Therefore  the  said  defendant  is  dis- 
charged from  the  penalty  of  the  said  bond.  And  it  is  considered 
that  the  plaintiff  recover  against  the  defendant  only  his  costs  by 
him  about  his  suit  expended.  And  the  court  doth  order  that 
the  money  so  brought  into  court  be  paid  by  the  clerk  to  the 
plaintiff,  if  he  will  receive  it,  and  if  not,  that  the  same  be  depo- 
sited by  the  clerk,  in  the  bank  of  Virginia  to  the  credit  of  this 
suit,  subject  to  the  future  order  of  the  court. 

10.  Debt  being  paid  after  suit  brought,  suit  dismissed  at  defendant's 

costs.     1  Rob.  Prac.  404. 

This  day  came  the  parties  by  their  attorneys,  and  the  plain- 
tiff acknowledging  that  the  debt  for  which  this  action  was  brought 
has  been  paid  since  the  action  was  commenced,  by  consent  of 
the  said  parties  it  is  ordered  that  this  suit  be  dismissed,  and  that 
the  defendant  pay  unto  the  plaintiff  his  costs. 

11.  Certificate  of  defendant  in  slander  produced  and  recorded  by  con- 

sent, and  suit  dismissed  at  defendant's  costs. 

This  day  &c.  and  thereupon,  by  their  consent,  a  certain  wri- 
ting, which  was  produced  in  court  by  the  defendant,  is  ordered 
to  be  entered  of  record,  and  the  same  is  as  follows  :  (Here  in- 
sert it.)  And  by  the  further  consent  of  the  said  parties,  it  is  or- 
dered that  this  suit  be  dismissed,  and  that  the  defendant  pay  to 
the  plaintiff  his  costs. 

12.  Judgment  upon  confession  in  court,  in  debt  on  bond  or  bill  penal. 

1  Rob.  Prac.  263. 

This  day  came  the  parties  by  their  attorneys  {or,  the  parties 
in  proper  person — or^  as  well  the  plaintiff  by  his  attorney,  as 
13 


98  Judsments  not  on  verdict. 


o' 


the  defendant  in  his  proper  person)  and  the  defendant*  acknow- 
ledges the  plaintiff's  action :  Therefore  it  is  considered  by  the 
court  that  the  plaintiff  recover  against  the  defendant  $200,  the 
debt  &c.  (as  in  No.  1.) 

*  If  there  has  been  a  plea,  insert  the  words  "  relinquishing  his  former 
plea,"  before  the  words  "  acknowledges  the  plaintiff's  action." 


or  for 


13.  Judgment  upon  confession,  for  debt  and  intei'est  demanded, 

debt,  interest  and  charges  of  protest  demanded. 

that  the  plaintiff  recover  against  the  defendant  $200, 

with  interest  thereon  to  be  computed  after  the  rate  of  six  per 

centum  per  annum  from  the day  of till  payment  (and 

$3.25  cents)  the  principal  and  interest  {or,  the  principal,  inte- 
rest and  charges  of  protest)  in  the  declaration  demanded,  and 
his  costs  by  him  about  his  suit  in  this  behalf  expended.  And 
the  said  defendant  in  mercy  &c. 

14.  Judgment  upon  coiifession,  in  debt  on  single  bill  or  ])romissory 

note,  where  no  interest  is  demanded.     1  Rob.  Prac.  264. 

This  day  came  &c.  and  the  defendant,  relinquishing  his  former 
pZea,*  acknowledges  the  plaintifTs  action  fort  the  debt  in  the  de- 
claration demanded,  with  interest  thereon  from  the day  of 

till  paid,  and  the  costs :    Therefore  it  is  considered  by  the 

court  that  the  plaintiff  recover  against  the  defendant  $200  the 
debt  aforesaid,  with  interest  thereon  to  be  computed  after  the 

rate  of  six  per  centum  per  annum   from  the  said day  of 

till  payment,  and  his  costs  by  &c. 

*  If  there  has  been  no  plea,  these  words  will  of  course  be  omitted. 

t  If  the  judgment  be  confessed  for  only  part  of  the  claim,  insert  here 
*'  $ parcel  of,"  and  after  the  word  "  therefore"  say,  "  with  the  as- 
sent of  the  plaintiff,  it  is  considered  by  the  court  that  the  plaintiff  re- 
cover against  the  defendant  the  said  $ ,  with  interest  thereon  &/C." 

15.  Judg7nent  upon  confession,  in  assumpsit  or  covenant.     1  Rob. 

Prac.  264. 

{As  before  to  "  acknowledges  the  plaintiff's  action.")  And  the 
parties  agree  that  the  plaintiff  hath  sustained  damages,  by  occa- 
sion of  the  nonperforma.nce  of  the  promises  and  assumptions*  in  the 
declaration  mentioned,  to  $  100  besides  his  costs,  and  that  there 

shall  be  interest  on  the  said  damages  from  the day  of : 

Therefore  it  is  considered  by  the  court  that  the  plaintiff  recover 


Judgments  not  on  verdict*^  99 

against  the  defendant  his  darffage^fi^e^'^sfJaforeeaid,  with  in- 
terest thereon  to  be  coniputed  after  the  rate  of  six  per  centanjt 

per  annum  from  the  eaid day  of ■  till  paynriept,  and  his 

costs  by  &c. 

*  If  the  action  be  covenant,  then,  in  lieu  of  the  words  in  italics,  use 
these  words — "  breaches  assigned  in  the  declaration,  of  the  covenants 
in  the  said"  &c. 

16.  Judgment  upon  confession,  in  debt  on  bond  with  collateral  condi- 
tion. 

This  day  came  &c.  and  the  defendant  &c.  And  the  parties 
agree  that  the  plaintiff  hath  sustained  damages,  by  occasion  of 
the  breach  assigned  in  the  declaration,  of  the  condition  of  the 
writing  obligatory  in  the  said  declaration  mentioned,  to  $343.52 
cents,  and  that  there  shall  be  interest  on  the  said  damages  from 

the  day  of :    Therefore  it  is  considered  by  the  court 

that  the  plaintiff  recover  against  the  defendant  $ the  debt 

in  the  declaration  demanded,  and  his  costs  &c. mercy  &c. 

But  this  judgment  is  to  be  discharged  by  the  payment  of  the 
damages  agreed  as  aforesaid,  with  interest  thereon  to  be  com- 
puted after  the  rate  of  six  per  centum  per  annum  from  the  said 
day  of till  payment,  and  the  costs. 

17.  Judgmefit  upon  co7ifession  in  detinue. 

This  day  &c.  and  the  defendant  &c.  And  the  parties  agree 
that  the  slave  in  the  declaration  demanded  is  of  the  value  of 
$  400,  and  that  the  plaintiff  hath  sustained  damages,  by  occasion 

of  the  detention  of  the  said  slave,  to  $ .     Therefore  it  is 

considered  by  the  court  that  the  plaintiff  recover  against  the  de- 
fendant the  negro  man  slave  named  Will,  in  the  said  declaration 
demanded,  if  he  may  be  had,  or  the  value  aforesaid  of  him  if  he 
may  not  be  had,  together  with  the  damages  agreed  as  aforesaid, 
and  his  costs  &c. mercy  &c. 

18.  Judgment  upon  confession  in  action  of  tort. 

This  day  &c.  and  the  defendant  &c.  And  the  parties  agree 
that  the  plaintiff  hath  sustained  damages,  by  occasion  of  the 

matters  in  the  declaration  mentioned,  to  $ .     Therefore  it  is 

considered  by  the  court  that  the  plaintiff  recover  against  the  de- 
fendant his  damages  agreed  as  aforesaid,  and  his  costs  &c.  And 
the  said  defendant  may  be  taken. 


100  Judgments  not  on  verdict. 

19.  Qxi^fB^^^<m^  -^f  ^^^gifkiki  with  stay  of  execution. 

After  the  pidgiHcnt,  add  these  words:     And  the  plaintiff"  agrees' 

to  stay  the  execution  of  tliis  judgment  until  the day  of 

next. 

20.  Where  the  judgment  confessed  is  by  an  executor  or  administrator. 

1  Rob.  Prac.  265. 

Before  the  words  "  and  the  said  defendant  in  mercy  &c."  insert 
these  words :  "  to  be  levied  of  the  goods  and  chattels  of  the  de- 
cedent in  the  hands  of  the  defendant  to  be  administered." 

I/'  the  single  plea  of  fully  administered  was  pleaded^  and  this  is 
admitted,  the  entry  will  be  as  follows: 

This  day  came  the  parties  by  their  attorneys,  and  the  plain- 
tiff", not  denying  the  matters  pleaded  by  the  defendant,  prays 
such  judgment  as  he  is  entitled  to  notwithstanding  the  said  plea: 
Therefore  it  is  considered  by  the  court  that  the  plaintiff"  recover 
against  the  defendant  $  200,  with  interest  thereon  &c.  from  &c. 
till  payment,  the  debt  and  interest  in  the  declaration  demanded, 
and  his  costs  &c.  to  be  levied  of  the  goods  and  chattels  which 
were  of  the  decedent  at  the  time  of  his  death,  and  which,  since 
the  said  plea  pleaded  as  aforesaid,  have  come,  or  which  shall 
hereafter  come,  to  the  hands  of  the  said  defendant  to  be  admi- 
nistered. And  it  is  further  considered  that  the  defendant  reco- 
ver against  the  plaintiff'  his  costs  by  him  about  his  defence  ex- 
pended. 

21.  Where  the  suit  is  against  several  defendants,  and  the  action  is 

confessed  by  one.     1  Rob.  Prac.  265,  6. 

This  day  came  &c.  and  the  defendant  A.  relinquishing  his 
former  plea,  acknowledges  the  plaintiff''s  action.  And  the  cause 
remains  without  judgment  upon  that  confession,  until  a  final 
judgment  can  be  given  as  to  all  the  defendants. 

22.  Power  of  attorney  for  confessing  judgment.    1  Rob.  Prac.  268. 

To  A.  B.  and  C.  D.  attorneys  practising  in  the  circuit  supe- 
rior court  of  law  and  chancery  for  the  county  of  H.,  jointly  and 
severally ;  or  to  any  other  attorney  practising  in  that  court. 

An  action  having  been  brought  against  me  in  the  said  court 
by  E.  F.  I  hereby  desire  and  authorize  j^ou,  or  any  one  of  you, 
to  appear  for  me  in  the  said  action,  and  confess  the  same,  and 
suffer  judgment  to  be  entered  therein  against  me  for  the  sum  of 
$ ,  with  interest-  thereon  from  the day  of till 


Judgments  7iot  on  verdict.  101 


"b 


paid,  and  the  costs.  And  for  so  doing  this  shall  be  to  you,  and 
every  of  you,  a  sufficient  warrant  and  authority.     In  witness 

whereof  I  have  hereunto  set  my  hand  and  seal,  this day 

of . 

[seal.] 

Signed,  sealed  and  delivered 

•     in  the  presence  of 

23.  Entry  of  judgment  confessed  under  a  power  of  attorney.     1  Rob. 

Prac.  268. 

This  day  came  the  plaintiflf  by  his  attorney,  and  produced  a 
power  of  attorney  for  confessing  judgment  in  this  action,  under 
the  hand  and  seal  of  the  defendant,  attested  by  G.  H.  who 
proved  the  due  execution  thereof:  whereupon  J.  B.  A.  gent, 
appeared  for  the  defendant  by  virtue  of  the  said  power,  and  the 
defendant,  by  his  said  attorney,  acknowledges  the  plaintiff's  ac- 
tion for  &c.     Therefore  &c. 

24.  In  action  of  debt  against  an  heir,  he  acknowledges  the  action  and 
shews  the  lands  which  he  has  by  descent,  and  judgment  is  entered  to 
be  levied  of  those  lands. 

This  day  &c.  and  the  defendant  acknowledgeth  the  plaintiff's 
action,  and  saith  that  he  hath  by  descent  from  the  said  T.  C.  his 
brother,  in  fee  simple,  one  tenement  in  this  county,  situate  &c. 
containing  &c.  with  the  appurtenances,  and  hath  no  other  real 
estate  descended  to  him  from  his  said  brother :  Therefore  it  is 
considered  by  the  court  that  the  plaintiff  recover  against  the  de- 
fendant $  600  the  debt  in  the  declaration  mentioned,  of  the  tene- 
ment aforesaid  with  its  appurtenances  to  be  levied,  and  his  costs 

&c. mercy  &c.     But  because  it  is  unknown  how  much  the 

said  tenement  with  its  appurtenances  is  worth  by  the  year  in  all 
the  issues  besides  reprises,  it  is  commanded  the  sheriff  of  the 
said  county,  that  by  the  oath  of  good  and  lawful  men  of  his  bai- 
liwick, he  diligently  enquire  how  much  the  said  tenement  with 
its  appurtenances  is  worth  by  the  year  in  all  issues  besides  re- 
prises, and  that,  inquisition  thereof  being  by  him  diligently  made, 
he  deliver  the  said  tenement  with  its  appurtenances,  according 
to  the  true  value  thereof,  to  the  said  plaintiff,  without  delay,  to 
hold  to  the  said  plaintiff  until  he  shall  have  levied  thereof  his 
debt  and  costs  aforesaid  ;  and  how  &c.  that  the  sheriff  make 
known  &c.  But  this  judgment  is  to  be  discharged  by  the  pay- 
ment of  $300,  with  interest  &c.  till  payment,  and  the  costs. 


102  Judgments  not  on  verdict. 

25.  Submission  of  a  controversy  to  arbitrators.     1  Rob.  Prac. 

269,  70. 

Whereas  a  controversy  exists  between  A.  B.  and  C.  D.  for 
which  there  is  no  remedy  but  by  personal  action  or  suit  in  equi- 
ty, unless  they  can  settle  the  same  by  arbitration,  and  both  of 
them  desiring  to  end  the  said  controversy,  it  has  been  agreed  by 
them  to  refer  to  E.  F.  and  G.  H.  as  arbitrators,  all  matters  in 
controversy  between  them,  with  liberty  to  the  said  arbitrators, 
either  before  they  enter  upon  the  arbitration,  or  at  any  time 
pending  the  reference,  to  choose  an  umpire :  Now  the  said  A. 
jB.  for  himself,  his  heirs,  executors  and  administrators,  agrees 
with  the  said  C.  D.,  and  the  said  C.  D.  for  himself,  his  heirs, 
executors  and  administrators,  agrees  with  the  said  A.  B.  to  sub- 
mit to  and  perform  the  award  of  the  said  arbitrators,  so  as  the 

said  award  be  made  in  writing  on  or  before  the day  of 

next ;  or  if  the  said  arbitrators  do  not  make  their  award 

by  that  time,  then  to  submit  to  and  perform  the  umpirage  and 
award  of  the  said  person  so  by  the  said  arbitrators  to  be  chosen 
as  umpire,  so  as  the  said  umpire  do  make  his  said  umpirage  and 

award  in  writing  on  or  before  the day  of next.    And 

the  said  parties  farther  agree  that  this  their  submission  to  the 
award  and  umpirage  aforesaid  shall  be  made  a  rule  of  the  cir- 
cuit superior  court  of  law  and  chancery  for  the  county  of  H. 
pursuant  to  the  statute  in  such  case.  Sealed  with  the  seals  of 
the  said  A.  B.  and  C.  D.  this day  of  - 


Sealed  and  delivered  in  the 
presence  of  J.  K. 


A.  B.  [seal.] 
C.  D.  [seal.] 


26.  Affidavit  of  the  execution  of  the  submission.    1  Rob.  Prac.  270. 

J.  K.  maketh  oath  and  saith,  that  A.  B.  and  C.  D.  did  each 

of  them,  in  the  presence  of  this  affiant,  acknowledge  and  deliver, 
as  his  act  and  deed,  the  submission  hereunto  annexed.  And  this 
affiant  farther  maketh  oath,  that  the  name  J.  K.  subscribed  to 
the  said  submission,  as  the  witness  thereof,  is  of  the  proper 
handwriting  of  this  affiant. 

J.K. 

Sworn  to  this day  of ,  before  me,  a  justice  of  the 

peace  for  the  county  of  H. 


Judgments  not  on  verdict.  103 

27.  Rule  of  court  upon  submission.     1  Rob.  Prac.  270. 

The  following  submission  and  affidavit  were  this  day  pro- 
duced in  court,  and  the  same  being  read,  they  are  ordered  to  be 
filed,  and  entered  in  the  proceedings  of  the  court :  (Here  in- 
sert the  submission  and  affidavit.) 

And  a  rule  is  thereupon  made  by  the  court,  that  the  parties 
shall  submit  to  and  finally  be  concluded  by  the  arbitration  or 
umpirage  which  shall  be  made  concerning  them  by  the  arbitra- 
tors or  umpire,  pursuant  to  the  said  submission. 

28.  Return  of  award  made  in  pursuance  cf  such  suhmsssion.     1  Rob. 

Prac.  270. 

An  award  between  A.  B.  and  C.  D.  made  in  pursuance  of  a 
submission  entered  in  the  proceedings  of  this  court  on  the  ' 

day  of ,  was  this  day  returned  ;    and  the  same  lies  for 

complaint  to  be  made  thereof,  if  any  cause  there  be. 

29.  Award  entered  up  as  the  judgment  of  the  court.     1  Rob.  Prac. 

270. 

A.  B.  by  his  attorney,  asking  that  the  award  between  him 

and  C.  D.  returned  on  the  day  of last,  may  now 

be  entered  up  as  the  judgment  of  this  court,  and  the  time  al- 
lowed by  law  for  complaint  thereof  having  elapsed  without  any 
such  complaint  being  made,  it  is  therefore  considered  by  the 
court  that  the  said  A.  B.  pursuant  to  the  said  award,  recover 
against  the  said  C.  D.  the  S  200  therein  mentioned,  and  his  costs 
by  him  in  this  behalf  expended.  And  the  said  defendant  in 
mercy  &c. 

27.   Order  referring  to  arbitrators  a  pendirig  suit.     1  Rob.  Prac. 

271. 

The  parties,  by  their  attorneys,  mutually  submit  all  matters 
in  difference  between  them  in  this  suit  to  the  final  determination 
of  A.  B.  and  C.  D.  and  agree  that  their  award,  or  the  award  of 
such  person  as  they  shall  choose  for  an  umpire  thereupon,  shall 
be  made  the  judgment  of  the  court.  And  the  same  is  ordered 
accordingly. 

28.   Order  of  reference  set  aside.     1  Rob.  Prac.  271. 

The  plaintiff,  by  his  attorney,  this  day  moved  the  court  to 
set  aside  the  order  referring  this  suit  to  arbitration  ;   and  the 


104  Judgments  not  on  verdict, 

court,  after  hearing  the  defendant  in  opposition  to  the  motion, 
being  X)f  opinion  that  the  execution  of  the  order  has  been  delayed 
an  unreasonable  length  of  time,  doth  for  this  reason  set  aside 
the  said  order,  and  direct  that  the  cause  be  tried  by  a  jury,  in 
like  manner  as  if  the  said  order  had  never  been  entered. 

29.  Another  order  of  reference  in  a  fending  suit.     1   Rob.  Prac. 

271,  2. 

The  parlies,  by  their  attorneys,  mutually  submit  all  matters 
in  difference  between  them  in  this  suit  to  the  final  determina- 
tion of  A.  B.  &c.  gentlemen,  and  agree  that  their  award,  or  the 
award  of  any  two  of  them  thereupon,  shall  be  made  the  judg- 
ment of  the  court.     And  the  same  is  ordered  accordingly. 

30.  Award  returned,  and  judgment  pursuant  thereto.     1  Rob.  Prac. 

279. 

An  award  made  between  the  parties,  under  the  order  of  re- 
ference in  this  suit,  was  this  day  returned :  whereupon  came 
the  parties  by  their  attorneys,  and  pursuant  to  the  said  award, 
it  is  considered  by  the  court  &c.  {Or — came  the  plaintiff  by  his 
attorney,  and  the  defendant  being  solemnly  called  and  not  ap- 
pearing, it  is,  pursuant  to  the  said  award,  considered  by  the 
court  &c.) 

Note.  The  judgment  must  of  course  be  such,  in  every  case,  as  the 
award  and  the  nature  of  the  case  may  require. 

31.  Judgment  of  a  justice  of  the  peace,  for  money,  affirmed  on 

a-pjjeal. 

J.  M.  appellant,  )      On  an  appeal  from  a  judgment  of  ajus- 
against  >  tice  of  the  peace,  recovered  by  the  appel- 

H.  J.  appellee.  )  lee  against  the  appellant,  the  20th  day  of 
February  1808,  for  $15.25  cents,  and  94  cents. 

This  day  came  the  parties  by  their  attorneys,  who  being  fully 
heard,  and  the  evidence  adduced  maturely  considered,  it  seems 
to  the  court  that  there  is  no  error  in  the  judgment  aforesaid : 
Therefore  it  is  considered  that  the  same  be  affirmed,  and  that 
the  appellee  recover  against  the  appellant  and  T.  T.  his  surety 
the  amount  thereof,  together  with  ten  per  centum  per  annum 
damages  thereon  from  the  aforesaid  20th  day  of  February  1808 
till  payment,  and  his  costs  by  him  about  his  defence  in  this  be- 
half expended. 


Judgments  not  on  verdict.  105 

32.  Judgment  upon  appeal  from  decision  of  a  justice  as  to  the  title 
of  property  taken  binder  an  execution  upon  a  warrant.  Sess. 
Acts  1839,  cb.  68.  p.  49. 

A.  B.  appellant,  ^      On  an  appeal  from  an  order  made  by  a 
against  Vjustice  of  the  peace,  upon  a  summons  is- 

E.  F.  appellee.  )  sued  at  the  instance  of  the  appellee  (ar, 
appellant)  to  shew  cause  why  certain  property  levied  upon  by 
virtue  of  an  execution  in  favour  of  the  appellant  {or,  appellee) 
against  C.  D.  upon  a  judgment  on  a  warrant,  and  claimed  by 
the  appellee  {or,  appellant)  should  not  be  discharged  from  the 
said  execution. 

This  day  came  the  parties  by  their  attorneys,  who  being  fully 
heard,  and  the  evidence  maturely  considered,  the  court  doth 
adjudge  that  the  property  levied  upon  is  liable  to  the  execution 
levied  on  the  same  :  Therefore  it  is  considered  that  the  order  of 
the  justice  of  the  peace,  directing  the  officer  to  restore  the  said 
property,  be  reversed  and  annulled,  and  that  the  appellant  re- 
cover against  the  appellee  his  costs  b}'  him  expended  in  the  pro- 
secution of  his  appeal  aforesaid  here.  And  it  appearing  that 
in  consequence  of  the  said  summons,  an  additional  expense  of 

$ has  been  incurred  by  G.  H.  constable  of  this  county,  in 

keeping  the  said  property,  the  court  doth  further  order  that  the 
appellee  pay  that  amount  to  the  said  constable. 

Or: 

doth   adjudge  that  the  property  levied  upon  belongs  to 

the  claimant  thereof,  and  is  not  liable  to  the  execution  levied  on 
the  same  :  Therefore  it  is  considered  that  the  order  of  the  jus- 
tice of  the  peace,  dismissing  the  said  summons,  be  reversed  and 
annulled,  that  the  said  property  be  restored  to  the  appellant,  and 
that  the  appellant  recover  against  the  appellee  his  costs  by  him 
expended  in  the  prosecution  of  his  appeal  aforesaid  here.  And 
whatever  expense  has  been  incurred  by  G.  H.  constable  of  this 
county,  in  keeping  the  said  property,  is  to  be  paid  him  by  the 
appellee. 

If  the  order  be  affirmed : 

doth  adjudge  that  &c.     Therefore  it  is  considered  that 

the  order  of  the  justice  of  the  peace,  directing  &c.  be  affirmed, 

and  that  the  appellee  recover  against  the  appellant,  and 

his  surety,  his  costs  by  him  about  his  defence  in  this  behalf  ex- 
pended.    And  the  court  doth  further  order  that  the  expense  &c. 
(The  order  will  be  such  as  may  be  equitable.) 
14 


106  Judsments  not  on  verdict. 


o 


33.  Opinion  upon  demurred'  to  declaration  containing  several  counts^ 

some  of  which  are  good.     1  Rob.  Prac.  281,  2. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  defendant's  demurrer  to  the  plaintiff's  declaration  being  ar- 
gued, it  seems  to  the  court  that  some  of  the  counts  in  the  said  de- 
claration are  good,  and  therefore  that  the  said  declaration  is  suffi- 
cient in  law  for  the  plaintiff  to  have  and  maintain  his  action 
against  the  defendant. 

34.  Opinion  upon  demurrer  to  a  count  containing  several  breaches, 

one  of  which  is  well  assigned.     1  Rob.  Prac.  282,  3. 

—. defendant's  demurrer  to  the  first  count  in  the  plaintiff's 

declaration  being  argued,  it  seems  to  the  court  that  one  of  the 
breaches  contained  in  the  said  count  is  well  assigned,  and  there- 
fore that  the  said  count  is  sufficient  &c.  (as  before.) 

35.  Opinion  upon  demurrer  to  a  declaration  or  count  containing  a 
demand  of  several  matters,  which  are  divisible,  and  one  of  which 
is  well  claimed.     1  Rob.  Prac.  282,  3. 

defendant's  demurrer  to  the  plaintiff's  declaration  {or, 

the  first  count  in  the  plaintiff's  declaration)  being  argued,  it 
seems  to  the  court  that  the  said  declaration  {or,  the  said  count) 
contains  a  demand  of  several  matters  which  in  their  nature  are 
divisible,  and  one  of  which  matters,  to  wit,  the  ^216.  10.  is 
well  claimed,  and  the  court  is  therefore  of  opinion  that  the  said 
declaration  {or,  the  said  count)  is  sufficient  &c.  (as  before.) 

36.  Opinion  upon  demurrer  to  a  declaration  in  which  there  is  a  mis- 

joinder of  counts.     1  Rob.  Prac.  284,  5. 

defendant's  demurrer  to  the  plaintiff's  declaration  being 


argued,  it  seems  to  the  court  that  the  plaintiff  has  joined  in  his 
declaration  causes  of  action  which  the  law  does  not  allow  to  be 
joined,  and  therefore  that  the  said  declaration  is  not  sufficient  in 
law  for  the  plaintiff  to  have  and  maintain  his  action  against  the 
defendant. 

.37.   Where  defendant  has  demurred  and  pleaded,  judgment  over- 
ruling his  demurrer.     IRob.  Prac.  286. 

AJler  stating  the  court's  opinion  as  in  No.  33,  34,  or  35,  {if  either 
of  those  forms  be  applicable)  add  these  words:  Whereupon  it  is  con- 
sidered by  the  court  that  the  said  demurrer  be  overruled. 


Judgments  not  on  verdict.  107 

In  common  cases,  use  the  form  in  No.  33,  omitting  the  words  in 
italics,  and  addiiig  thereto  these  words:  Therefore  it  is  considered 
by  the  court  that  the  said  demurrer  be  overruled. 

38.  Where  defendant  has  demurred  without  pleading,  judgment  over- 
ruling his  demurrer  and  allowing  him  to  plead.  1  Rob.  Prac. 
286. 

After  attending  to  the  directions  in  No.  37,  add  these  words :  And 
the  defendant  now  desiring  to  plead  to  issue,  he  is  allowed  to 
do  so.     Whereupon  he  &c.  (here  enter  the  plea.) 

39.  Where  defendant  has  demurred  without  pleading,  and  his  de- 
murrer being  overruled,  final  judgment  is  entered.  1  Rob.  Prac. 
286. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  defendant's  demurrer  to  the  plaintiff's  declaration  being  ar- 
gued, it  seems  to  the  court  that  the  said  declaration  is  suflBcient 
in  law  for  the  plaintiff  to  have  and  maintain  his  action  against 
the  defendant:  Therefore  it  is  considered  by  the  court  that  the 
plaintiff  recover  against  the  defendant  (as  in  No.  1,  if  it  be  a 
case  in  which,  had  there  been  no  demurrer,  judgment  would 
have  been  given  by  default,  without  the  interposition  of  a  jury.) 

If  the  a-ction  be  debt  on  a  collateral  bond,  after  the  judgment  for 
the  debt  and  costs,  add  these  words:  But  this  judgment  is  to  be 
discharged  by  the  payment  of  such  damages  as  the  plaintiff  has 
sustained  by  occasion  of  the  breach  of  the  condition  of  the 
writing  obligatory  in  the  declaration  mentioned,  and  the  costs  ; 
which  damages  are  to  be  enquired  of  by  a  jury. 

If  the  action  sound  entirely  in  damages,  the  entry  may  be  made 
thus:  Therefore  it  is  considered  by  the  court  that  the  said  de- 
murrer be  overruled;  that  the  plaintiff  recover  against  the  de- 
fendant such  damages  as  he  has  sustained  by  occasion  of  the 
matters  in  the  declaration  mentioned  ;  and  that  his  said  damages 
be  enquired  of  by  a  jury. 

40.  Final  judgment  in  favour  of  a  defendant  upon  his  demurrer  to 

the  declaration.     1  Rob.  Prac.  287. 

that  the  said  declaration  is  not  sufficient  in  law  for  the 


plaintiff  to  have  and  maintain  his  action  against  the  defendant; 
Therefore  it  is  considered  by  the  court  that  the  plaintiff  take 
nothing  by  his  bill,  but  for  his  false  clamour  be  in  mercy  &c. 
and  that  the  defendant  go  thereof  without  day,  and  recover 
against  the  plaintiff  his  costs  by  him  about  his  defence  in  this 
behalf  expended. 


108  Judgments  not  on  verdict. 

41.  After  opinion  in  favour  of  defendant  upon  his  demurrer,  joinder 
withdrawn,  and  leave  to  amend.     1  Rob.  Prac.  287. 

that  the  said  declaration  is  not  sufficient  in  law  for  the 


plaintiff  to  have  and  maintain  his  action  against  the  defendant. 
Whereupon,  the  plaintiff  suggesting  that  the  ground  of  the  court's 
opinion  is  such  as  can  be  removed  by  an  amendment,  the  court, 
at  the  instance  of  the  said  plaintiff,  forbears  to  enter  a  final  judg- 
ment for  the  defendant  upon  his  demurrer,  and  allows  the  plain- 
tiff to  withdraw  his  joinder  therein,  and  amend  his  declaration. 
But  the  said  plaintiff  is  to  pay  all  the  costs  incurred  by  himself, 
or  occasioned  to  the  defendant,  by  his  filing  the  said  insufficient 
declaration. 

42.  Judgment  for  defendant  upon  demurrer  to  a  "particular  coimt. 
1  Rob.  Prac.  287. 

This  day  came  &c.  and  thereupon  the  defendant's  demurrer 
to  the  first  count  in  the  plaintiff's  declaration  being  argued,  it 
seems  to  the  court  that  the  said  first  count  is  not  sufficient  in 
law  for  the  plaintiff  to  have  and  maintain  his  action  against  the 
defendant  upon  that  count:  Therefore  it  is  considered  by  the 
court  that  the  plaintiff  take  nothing  by  his  said  first  count,  and 
that  he  pay  all  the  costs  incurred  by  himself,  or  occasioned  to 
the  defendant,  by  the  said  insufficient  count. 

43.  Judgmetit  for  plaintiff  upon  demurrer  to  a  plea  in  abatement. 
1  Rob.  Prac.  287,  8. 

This  day  came  &c.  and  thereupon  the  plaintiff's  demurrer  to 
the  defendant's  plea  in  abatement  being  argued,  it  seems  to  the 
court  that  the  matter  contained  in  the  said  plea  is  not  sufficient 
in  law  to  quash  the  plaintiff's  writ :  Therefore  it  is  considered 
by  the  court  that  the  said  plea  be  overruled,  and  that  the  plain- 
tiff recover  against  the  defendant  his  full  costs  of  suit  to  this 
time,  a  lawyer's  fee  only  excepted.  And  the  court  doth  order 
that  the  defendant  to  the  plaintiff's  delaration  do  further  answer. 

44.  Judgment  for  defendant  upon  demurrer  to  his  plea  in  abatement. 
1  Rob.  Prac.  288. 

is  sufficient  in  law  to  quash  the  plaintiff's  writ :  There- 
fore it  is  considered  that  the  same  be  quashed  accordingly,  and 
that  the  defendant  recover  against  the  plaintiff  his  costs  by  him 
about  his  defence  in  this  behalf  expended. 


Judgments  not  on  verdict.  109 

45.  Judgment  for  defendant  vpon  demurrer  to  a  plea  in  abatement 
pleaded  by  him  to  particular  counts.     1  Rob.  Prac.  288,  9. 

This  day  came  &c.  and  thereupon  the  plaintiff's  demurrer  to 
the  plea  in  abatement  pleaded  by  the  defendant  to  the  third, 
fourth  and  last  counts  of  the  plaintiff's  declaration  being  argued, 
it  seems  to  the  court  that  the  matter  contained  in  the  said  plea  is 
sufficient  in  law  to  quash  those  counts,  and  so  much  of  the  writ  as 
regards  the  same  :  Therefore  it  is  considered  that  those  counts, 
and  so  much  of  the  writ  as  regards  the  same,  be  quashed  accor- 
dingly, and  that  the  plaintiff  pay  all  costs  incurred  by  himself, 
or  occasioned  to  the  defendant,  by  his  filing  those  counts. 

46.  Judgment  for  plaintiff  upon  demurrer  to  a  replication  to  a  plea 

in  abatement.     1  Rob.  Prac.  289. 

This  day  came  &c.  and  thereupon  the  defendant's  demurrer 
to  the  plaintiff's  replication  to  the  said  defendant's  plea  in  abate- 
ment being  argued,  it  seems  to  the  court  that  the  matter  con- 
tained in  the  said  replication  is  sufficient  in  law  to  maintain  the 
plaintiff's  writ :  Therefore  &c.  (like  the  judgment  for  plaintiff 
upon  demurrer  to  a  plea  in  abatement.     See  No.  43.) 

47.  Another,  where  the  plea  was  bad ;  the  court  going  up  to  the  first 

fault.     1  Rob.  Prac.  289. 

This  day  came  &c.  and  thereupon  the  defendant's  demurrer 
to  the  plaintiff's  replication  to  the  said  defendant's  plea  in  abate- 
ment was  argued,  and  in  the  argument  it  was  insisted  by  the 
plaintiff,  that  though  the  replication  might  be  bad,  yet  that  the 
plea  was  bad  also,  and  that,  upon  the  principle  of  going  up  to 
the  first  fault  in  the  pleadings,  judgment  should  be  given  for  the 
plaintiff.  Whereupon  the  matters  of  law  arising  upon  the  said 
demurrer  being  maturely'-  considered,  it  seems  to  the  court  that 
the  matter  contained  in  the  defendant's  plea  is  not  sufficient  in 
law  to  quash  the  plaintiff's  writ :     Therefore  &c.  (as  in  No.  43.) 

48.  Judgment  for  defendant  upon  demurrer  to  replication  to  plea  in 

abateme7it.     1  Rob.  Prac.  289. 

This  day  came  &c.  and  thereupon  the  defendant's  demurrer 
to  the  plaintiff's  replication  to  the  said  defendant's  plea  in  abate- 
ment being  argued,  it  seems  to  the  court  that  the  matter  con- 
tained in  the  said  replication  is  not  sufficient  in  law  to  maintain 
the  plaintiff's  writ :  Therefore  it  is  considered  that  the  said 
writ  be  quashed,  and  that  the  defendant  recover  against  the 


110  Judgments  not  on  verdict. 

plaintiff  his  costs  by  him  about  his  defence  in  this  behalf  ex- 
pended. 

49.  Upon  demurrer  to  plea,  JinaL  judgment  in  favour  of  defendant 

because  declaration  was  had.     1  Rob.  Prac.  289,  90. 

This  day  &c.  and  thereupon  the  plaintiff's  demurrer  to  the 
defendant's  second  plea  being  argued,  it  was  insisted  on  behalf 
of  the  defendant,  that  on  the  case  made  by  the  declaration,  the 
plaintiff  has  no  right  to  recover,  and  therefore  that  judgment 
should  be  given  against  him.  Whereupon  the  matters  of  law 
arising  upon  the  said  demurrer  being  maturely  considered,  it 
seems  to  the  court  that  the  said  declaration  is  not  sufficient  in 
law  for  the  plaintiff  to  have  and  maintain  his  action  against  the 
defendant :  Therefore  &c.  (like  the  judgment  in  favour  of  a 
defendant  upon  his  demurrer  to  the  declaration.     See  No.  40.) 

50.  Upon  demurrer  to  plea,  final  judgment  for  defendant,  plea  being 

adjudged  good.     1  Rob.  Prac.  290.  291. 

This  day  &c.  and  thereupon  the  plaintiff's  demurrer  to  the 
defendant's  second  plea  being  argued,  it  seems  to  the  court  that 
the  matters  contained  in  the  said  second  plea  are  sufficient  in 
law  to  bar  and  preclude  the  plaintiff  from  having  or  maintain- 
ing his  action  against  the  defendant:     Therefore  &c.  (as  last.) 

51.  Demurrer  to  one  of  defendant'' s  pleas  sustained.     1  Rob.  Prac. 

291. 

This  day  &c.  and  thereupon  the  plaintiff's  demurrer  to  the 
second  plea  of  the  defendant  being  argued,  it  seems  to  the  court 
that  the  matters  contained  in  the  said  second  plea  are  not  suffi- 
cient in  law  to  bar  or  preclude  the  plaintiff  from  having  or  main- 
taining his  action  against  the  defendant :  Therefore  it  is  con- 
sidered by  the  court  that  the  demurrer  to  the  said  second  plea 
be  sustained.  But  no  final  judgment  is  given  in  the  cause,  be- 
cause there  are  issues  in  fact  which  remain  to  be  tried. 

52.  Demurrer  sustained  to  defendant's  only  plea.    1  Rob.  Prac.  291. 

This  day  &c.  and  thereupon  the  plaintiff's  demurrer  to  the 
defendant's  plea  being  argued,  it  seems  to  the  court  that  the 
matters  contained  in  the  said  plea  are  not  sufficient  in  law  to 
bar  or  preclude  the  plaintiff  from  having  or  maintaining  his  ac- 
tion against  the  defendant:  Therefore  &c.  (like  the  judgment 
in  favour  of  a  plaintiff  upon  defendant's  demurrer  to  his  decla- 
ration.    See  No.  39.) 


Judgments  iiot  on  verdict.  Ill 


o 


63.  In  debt  on  judgment,  demurrer  to  -plea  sustained,  and  judgment 
not  being  for  interest,  writ  of  enquiry  awarded.  1  Rob.  Prac. 
291. 

This  day  &c.  and  thereupon  &c.  it  seems  &c.  Therefore  it 
is  considered  by  the  court  that  the  said  demurrer  be  sustained. 
And  on  the  motion  of  the  plaintiff,  it  is  ordered  that  the  da- 
mages which  the  said  plaintiff  has  sustained  by  occasion  of  the 
detention  of  the  debt  in  the  declaration  demanded,  be  enquired 
of  by  a  jury. 

54.   Where  plea  is  only  to  one  count,  demurrer  thereto  overruled. 
1  Rob.  Prac.  291,  2. 

This  day  &c.  and  thereupon  the  plaintiff's  demurrer  to  the 
defendant's  plea  to  the  third  count  of  the  said  plaintiff's  decla- 
ration being  argued,  it  seems  to  the  court  that  the  matters  con- 
tained in  the  said  plea  to  the  said  third  count  are  sufficient  in 
law  to  bar  and  preclude  the  plaintiff  from  having  or  maintaining 
his  action  against  the  defendant  on  that  count :  Therefore  it  is 
considered  by  the  court  that  the  plaintiff  take  nothing  by  his 
said  third  count. 

55.  After  courts  opinion  for  defendant  on  demurrer  to  plea,  plain- 
tiff allowed  to  withdraw  his  johider  and  to  reply.  1  Rob.  Prac. 
292. 

This  day  &c.  and  thereupon  the  plaintiff's  demurrer  to  the 
defendant's  plea  being  argued,  it  seems  to  the  court  that  the 
matters  contained  in  the  said  plea  are  sufficient  in  law  to  bar 
and  preclude  the  plaintiff  from  having  or  maintaining  his  action 
against  the  defendant.  Whereupon  the  plaintiff  moved  for  leave 
to  withdraw  his  joinder  in  the  said  demurrer,  and  to  reply  to 
the  said  plea:  and  the  court  being  of  opinion  that  the  justice  of 
the  case  requires  that  the  said  leave  should  be  granted,  the  same 
is  granted  accordingly.  But  the  plaintiff  is  to  paj'  all  the  costs 
incurred  by  himself,  or  occasioned  to  the  defendant,  by  his 
filing  the  said  demurrer. 

56.  Uyon  demurrer  to  replication,  final  judgment  in  favour  of  plain- 

tiff because  plea  is  bad.     1  Rob.  Prac.  292. 

This  day  &c.  and  thereupon  the  defendant's  demurrer  to  the 
plaintiff's  replication  to  his  plea  being  argued,  it  was  insisted 
by  the  plaintiff  that  the  said  plea  is  insufficient,  and  that,  on  the 
principle  of  going  up  to  the  first  fault,  the  said  plea  should  be 


112  Judgments  not  on  verdict. 

overruled,  and  judgment  given  for  the  plaintiff.  Whereupon 
the  matters  of  law  arising  upon  the  said  demurrer  being  ma- 
turely considered,  it  seems  to  the  court  that  the  said  plea  is  not 
sufficient  in  law  to  bar  or  preclude  the  plaintiff  from  having  or 
maintaining  his  action  against  the  defendant :  Therefore  &c. 
(like  the  judgment  in  favour  of  a  plaintiff  upon  defendant's  de- 
murrer to  his  declaration.     See  No.  39.) 

57.  Demurrer  to  replication  overruled,  and  defendant  allowed  to  make 

up  issue  in  fact.     1  Rob.  Prac.  293. 

This  day  &c.  and  thereupon  the  defendant's  demurrer  to  the 
plaintiff's  replication  to  his  plea  being  argued,  it  seems  to  the 
court  that  the  matters  contained  in  the  said  replication  are  suffi- 
cient in  law  for  the  plaintiff  to  have  and  maintain  his  action 
against  the  defendant.  Whereupon,  on  the  motion  of  the  de- 
fendant, he  is  allowed  to  make  up  an  issue  in  fact  upon  the  said 
replication,  to  be  tried  before  a  jury. 

58.  Upon  demui'rer  to  replication,  final  judgment  in  favour  of  de- 

fendant.    1  Rob.  Prac.  293,  4. 

This  day  &c.  and  thereupon  &c.  it  seems  to  the  court  that  the 
matters  contained  in  the  said  replication  are  not  sufficient  in  law 
for  the  plaintiff  to  have  and  maintain  his  action  against  the  de- 
fendant :  Therefore  &c.  (like  the  judgment  in  favour  of  a  de- 
fendant upon  his  demurrer  to  the  declaration.     See  No.  40.) 

59.  Plea  being  to  one  count,  judgment  for  defendant  upon  his  de- 
murrer to  the  replication  thereto.     1  Rob.  Prac.  293. 

This  day  &c.  and  thereupon  the  defendant's  demurrer  to  the 
plaintiff's  replication  to  the  said  defendant's  plea  to  the  first 
count  of  the  declaration  being  argued,  it  seems  to  the  court  that 
the  matters  contained  in  the  said  replication  are  not  sufficient  in 
law  for  the  plaintiff  to  have  and  maintain  his  action  against  the 
defendant  upon  the  said  first  count :  Therefore  it  is  considered 
by  the  court  that  the  plaintiff  take  nothing  by  his  said  first  count. 

60.  Judgmetit  upon  demurrer  to  rejoinder  to  replication.     1  Rob. 

Prac.  294. 

This  day  &c.  and  thereupon  the  plaintiff's  demurrer  to  the 
rejoinder  to  his  replication  to  the  defendant's  plea  being  argued, 
it  seems  to  the  court  that  the  matters  contained  in  the  said  re- 
joinder are  {or,  are  not)  sufficient  &c.  (like  the  judgment  upon 
a  demurrer  to  a  plea.) 


Judgments  not  on  verdict.  113 

61.  Judgment  for  defendant  wpon  demurrer  to  rejoinder  to  replicatioHf 

because  replication  is  bad.     1  Rob.  Prac.  294. 

This  day  &c.  and  thereupon  the  plaintiff's  demurrer  to  the 
rejoinder  to  his  replication  to  the  defendant's  plea  being  argued, 
it  seems  to  the  court  that  the  matters  contained  in  the  said  re- 
plication are  not  sufficient  &c.  Therefore  &c.  (like  the  judg- 
ment for  a  defendant  upon  demurrer  to  a  declaration.) 

62.  Demurrers  fled  to  certain  counts  in  declaration ;  sixteen  pleas 

fled  ;  demurrers  to  some,  and  issues  in  fact  upon  others. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  defendant  filed  a  demurrer  to  the  first  and  second  counts  in 
the  plaintifPs  declaration,  and  a  demurrer  to  the  third  count  in 
the  said  declaration,  in  which  demurrers  the  plaintiff  joined  ; 
the  said  defendant  also  filed  sixteen  pleas  in  writing,  to  the  third 
and  fifth  of  which  the  plaintiff  filed  similit eis,  and  to  the  first  he 
replied  generally  ;  the  plaintiff  filed  a  demurrer  to  the  second 
and  fourth,  and  also  to  the  sixth,  eleventh,  twelfth,  thirteenth 
and  fourteenth  pleas,  in  which  demurrers  the  defendant  joined; 
the  plaintiff  filed  a  replication  to  the  seventh  and  eighth,  to  the 
ninth  and  tenth,  and  to  the  fifteenth  and  sixteenth  pleas ;  to 
which  the  defendant  filed  similiters.  And  thereupon,  on  the 
motion  of  the  said  defendant,  it  is  ordered,  that  the  judgment 
obtained  in  the  office  against  him  be  set  aside. 

63.  Defendant  in  last  case  tendered  two  other  pleas,  which  were  re- 
fused ;  demurrers  to  certain  counts  in  the  declaration,  and  to  cer- 
tain pleas,  argued  ;  and  judgment  thereupon. 

This  day  came  &c.  and  thereupon  the  defendant  moved  the 
court  to  allow  two  other  pleas,  which  he  tendered,  to  be  filed  ; 
but  the  plaintiff  agreeing  that  the  defendant  may  avail  himself 
of  any  defence  under  the  pleas  already  filed  in  this  cause,  that 
he  might  lawfully  make  under  the  two  pleas  so  offered,  the  court 
doth  refuse  leave  to  file  them.  Whereupon,  the  matters  of  law 
arising  upon  the  demurrer  of  the  defendant  to  the  first  and  se- 
cond counts  in  the  plaintiff's  declaration  ;  upon  the  demurrer  of 
the  said  defendant  to  the  third  count  in  the  said  declaration,  and 
upon  the  demurrers  of  the  plaintiff  to  the  second,  fourth,  sixth, 
eleventh,  twelfth,  thirteenth  and  fourteenth  pleas  pleaded  by  the 
defendant,  being  argued,  it  seems  to  the  court  here,  that  the 
first  and  second  counts  in  the  said  declaration,  and  the  matters 
therein  contained,  are  sufficient  in  law  for  the  plaintiff  to  have 
and  maintain  his  action  against  the  defendant ;  that  the  third 
16 


114  Judgments  not  on  verdict. 

count  in  the  said  declaration,  and  the  matters  therein  contained, 
are  insufficient  in  law  for  the  plaintiff"  to  have  and  maintain  his 
said  action  upon  that  count ;  and  that  the  defendant's  second, 
fourth,  sixth,  eleventh,  ivt'elfih,  thirteenth  and  fourteenth  pleas, 
and  the  matters  therein  contained,  in  manner  and  form  as  the 
same  are  therein  set  forth,  are  not  sufficient  in  law  to  bar  the 
plaintiff'  from  having  and  maintaining  his  action  against  the  de- 
fendant :  Therefore  it  is  considered  by  the  court  that  the  defen- 
dant's demurrer  to  the  said  first  and  second  counts  be  overruled, 
his  demurrer  to  the  said  third  count  sustained,  and  his  said  se- 
cond, fourth,  sixth,  eleventh,  twelfth,  thirteenth  and  fourteenth 
pleas  be  overruled  ;  that  the  defendant  pay  to  the  plaintiff"  the 
costs  occasioned  him  by  the  said  defendant's  filing  the  said  in- 
sufficient demurrer  to  the  first  and  second  counts  in  his  decla- 
ration, and  the  insufficient  pleas  aforesaid  ;  and  that  the  plaintiff* 
pay  to  the  defendant  the  costs  occasioned  him  by  the  said  plain- 
tiff^'s  filing  the  said  insufficient  third  count  in  his  declaration. 
And  on  the  motion  of  the  defendant,  this  cause  is  continued  till 
the  next  term,  at  his  costs. 

64.  Four  pleas  tendered,  hit  Jirst,  third  and  fourth  only  received ; 
replication  to  first  and  fourth,  and  issues ;  replication  also  to 
third,  rejoinder  thereto^  and  demurrer  to  rejoinder  ;  judgment  for 
plaintiff  on  demurrer  ;  and  verdict  for  him  on  other  issues. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  defendant  tendered  four  pleas  in  writing,  the  first,  third  and 
fourth  of  which  pleas  were  received  and  filed  ;  but  the  plaintiff* 
objecting  to  the  filing  of  the  second,  the  court  refused  to  allow 
the  same  to  be  filed  ;  the  plaintiff"  filed  his  replications  to  the 
defendant's  first  and  fourth  pleas,  and  issues  on  the  same  were 
joined  between  the  parties ;  to  the  defendant's  third  plea  the 
plaintiff"  filed  a  replication,  to  which  the  defendant  filed  a  re- 
joinder ;  to  that  rejoinder  the  plaintiff"  filed  a  demurrer,  and  the 
defendant  joined  in  the  said  demurrer:  whereupon,  the  matters 
of  law  arising  upon  the  plaintiff''s  demurrer  to  the  said  rejoinder 
being  argued,  it  seems  to  the  court  here  that  the  said  rejoinder, 
and  the  matters  and  things  therein  alleged,  are  not  sufficient  in 
law  to  bar  or  preclude  the  plainliff"  from  having  or  maintaining 
his  action  against  the  defendant.  And  thereupon  came  a  jury, 
to'wit,  TV.  R.  &c.  who  being  elected,  tried  and  sworn  the  truth 
to  speak  upon  the  issues  joined  on  the  defendant's  first  and 
fourth  pleas,  upon  their  oath  do  say,  that  on  the  said  issues  they 
find  for  the  plaintiff)  and  they  do  assess  the  plaintiff''s  damages 
by  occasion  &c.  to  &c.     Therefore  &c. 


Judgments  not  on  verdict.  115 


o 


65.  After  writ  of  enquiry,  damages  assessed  by  the  court,  and  final 
judgment  rendered.     Sess.  Acts  1839,  p.  43.  ch.  66.  "^  3. 

This  day  came  the  plaintiff  by  his  attorney,  and  the  defen- 
dant, though  solemnly  called,  not  appearing  to  require  a  jury, 
and  the  plaintiff  requiring  none,  the  court  proceeded,  in  lieu  of 
a  jury,  to  assess  the  damages  which  the  plaintiff  has  sustained 
by  occasion  of  the  matters  in  the  declaration  mentioned,  and  to 
ascertain  the  time  from  which  interest  on  the  principal  sum  shall 
run.     Whereupon  the  court  doth  assess  the  said  damages  at 

$ ,  and  ascertain  the  time  from  which  interest  shall  run 

on  the  same  to  be  the day  of :  Therefore  it  is  con- 
sidered that  the  plaintiff  recover  against  the  defendant  his  da- 
mages assessed  as  aforesaid,  with  interest  thereon  to  be  com- 
puted after  the  rate  of  six  per  centum  per  annum  from  the  said 

day  of till  payment,  and  his  costs  by  him  about 

his  suit  in  this  behalf  expended.  And  the  said  defendant  in 
mercy  &c. 


116  Trial  by  jury. 


CHAPTER  XIII. 

TRIAL  BY  JURY. 


1.   Order  directing  jurors  to  be  summoned  for  a  subsequent  day. 
1  Rob.  Prac.  295. 

To  secure  the  attendance  of  fit  jurors  on  Wednesday  next, 
the  court  doth  order  that  the  sheriff  sunamon  eighteen  jurors  to 
attend  the  court  on  that  day. 

2.  Sheriff  being  interested,  order  directing  coroner  to  summon  Jury. 

1  Rob.  Prac.  295. 

The  sheriff  of  this  county  being  interested  in  this  suit,  the 
court  doth  direct  the  coroner  of  the  county  to  summon  a  jury  to 
attend  tomorrow  for  the  trial  of  the  issue. 

3.  Sheriff  and  coroners  being  interested,  order  appointing  a  person  to 

summon  a  jury.     1  Rob.  Prac.  295. 

.  The  sheriff  and  coroners  of  this  county  being  interested  in  this 
suit,  the  court  doth  appoint  A.  B.  to  summon  a  jury  to  attend  to- 
morrow for  the  trial  of  the  issue;  he  the  said  A.  B.  first  taking 
an  oath  that  he  will  impartially  perform  that  duty. 

4.  Oath  of  jury  to  try  an  issue.     1  Rob.  Prac.  297. 

You  shall  well  and  truly  try  the  issue  (or,  issues)  joined  be- 
tween A.  B.  plaintiff  and  C.  D.  defendant,  and  a  true  verdict 
give  according  to  the  evidence.     So  help  you  God. 

5.   Oath  of  jury  to  enquire  of  damages.     1  Rob.  Prac.  297. 

You  shall  diligently  enquire  of  damages  in  the  suit  between 
A.  B.  plaintiff  and  C.  D.  defendant,  and  a  true  verdict  give  ac- 
cording to  the  evidence.     So  help  &c. 

6.   Oath  of  a  witness  on  the  voir  dire. 

You  shall  swear  that  the  answers  which  you  shall  give  to  such 


Trial  by  jury.  117 

questions  as  this  court  shall  propound  to  you,  relating  to  the  dif- 
ference depending  between  A.  B.  plaintiff  and  C.  D.  defendant, 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth. 
So  help  &c. 

7.   Oath  of  witnesses  in  chief. 

The  evidence  that  you  and  each  of  you  shall  give  in  the  dif- 
ference depending  between  A.  B.  plaintiff  and  C.  D.  defendant, 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth. 
So  help  &c. 

8.  Solemn  affirmation  by  juror  or  witness. 

You  shall  solemnly  affirm  that  you  will  well  and  truly  try  &c. 
(as  in  No,  4.)  or,  that  you  will  diligently  enquire  &c.  (as  in  No. 
5.)  or,  that  the  answers  &c.  (as  in  No.  6.)  or,  that  the  evidence 
that  you  shall  give  &c.  (as  in  No.  7.) 

9.  Authentication  entitling  record  of  one  state  to  be  admitted  as  evi- 
dence in  another.     1  Rob.  Prac.  317. 

State  of  Virginia,  Henrico  county,  to  wit : 

T,  /.  R.  clerk  of  the  circuit  superior  court  of  law  and  chance- 
ry for  the  county  of  H.  in  the  state  of  Virginia,  do  hereby  certi- 
fy that  the  foregoing  is  a  true  transcript  from  the  records  of  the 
said  court. 

r      i-|     In  testimony  whereof  I  hereto  set  my  hand  and  annex 

'-       -I'    the  seal  of  the  said  court,  this day  of . 

If  the  transcript  be  from  a  record  in  a  suit,  say that  the 

foregoing  is  a  true  transcript  from  the  records  and  judicial  pro- 
ceedings of  the  said  court,  and  contains  the  record  and  proceed- 
ings in  a  certain  action  of  debt  lately  depending  in  the  said 
court  between  A.  B.  plaintiff  and  C.  D.  defendant,  with  all 
things  touching  the  same,  as  fully  and  wholly  as  they  exist 
among  the  records  and  proceedings  of  the  court  aforesaid.  In 
testimony  &c.  (as  before.) 

Certificate  of  the  judge  in  either  case. 

Virginia,  H.  county,  to  wit :  I,  fV.  B.  judge  of  the  circuit 
superior  court  of  law  and  chancery  for  the  county  of  H.  in  the 
state  of  Virginia,  and  the  only  judge  thereof,  do  certify  that  J. 
R.  who  hath  given  the  preceding  certificate,  is  clerk  of  the  said 
court,  and  that  his  said  attestation  is  in  due  form.  Given  under 
my  hand  this day  of . 


118  Trial  by  jwy. 

10.  Authentication  entitling  a  power  of  attorney  or  deed  from  ano- 
ther state  to  he  received  as  evidence  in  Virginia,    1  Rob.  Prac.  319. 

State  of ,  to  wit : 

I,  A.  B.  clerk  of  the  &c.  (describing  the  court)  in  the  said 
state,  being  a  court  of  record,  do  certify  that  C.  D.  who  hath 
signed  and  sealed  the  foregoing  power  of  attorney  {or,  deed) 

personally  appeared  in  the  said  court  on  the day  of , 

and,  before  the  said  court,  acknowledged  the  said  power  of  at- 
torney (or,  deed.) 


[seal]. 


In  testimony  whereof  I  hereto  set  my  hand  and  annex 


the  seal  of  the  said  court,  this day  of 

Or : do  certify  that  E.  F.,  G.  H.  and  J.  K.  the  subscri- 
bing witnesses  to  the  foregoing  power  of  attorney  {or,  deed)  per- 
sonally appeared  in  the  said  court  on  the day  of ,  and 

it  was  then  by  them,  before  the  said  court,  proved  that  A.  B. 
who  hath  signed  and  sealed  the  said  deed  {or,  power  of  attor- 
ney) acknowledged  and  delivered  the  same  in  their  presence  as 
his  act  and  deed.     In  testimony  &c.  (as  before.) 

If  there  be  no  seal,  the  authentication  may  be  as  follows :  In  testi- 
mony whereof,  there  being  no  seal  belonging  to  the  said  court, 
I  the  said  A.  B.  do  hereto  set  my  hand,  this day  of . 

State  of ,  to  wit : 

I,  L.  M.  presiding  judge  (or,  justice)  of  the  &c.  do  certify  that 
A.  B.  whose  name  is  affixed  to  the  preceding  certificate  as  clerk 
of  the  said  court,  is  clerk  thereof,  and  that  his  said  attestation  is 
in  due  form.     Given  under  my  hand  this day  of . 

.11.  Protest  of  an  inland  hill  of  exchange. 
The  form  is  prescribed  in  1  R.  C.  1819,  p.  483. 

12.  Protest  of  a  foreign  hill  of  exchange. 

The  form  is  given  in  Chitty  on  Bills,  p.  310. 

13.  Notice  of  dishoiiour. 

Either  expressly,  or  by  necessary  inference,  the  notice  must  disclose 
that  the  bill  or  note  has  been  dishonoured.  In  respect  to  a  bill,  the  two 
important  facts  are,  that  payment  of  the  bill  has  been  demanded  of  the 
acceptor,  and  that  payment  has  not  been  obtained.  In  like  manner,  in 
the  case  of  a  note,  the  notice  should  shew  a  presentment,  demand  of 
payment,  and  refusal.  See  opinion  of  Tindal,  C.  J.  in  Boulton  v. 
Welsh,  3  Bingh.  N.  C.  688.  32  Eng.  Com.  Law  Rep.  283. 


Trial  by  Jury.  119 

14.  Protest  and  affidavit  under  acts  of  January  28.  1829  and  Feb- 

ruary 3.  1834.     1  Rob.  Prac.  320. 

These  acts  are  unskilfully  drawn.  It  seems  to  be  expected  that  the 
time,  place  and  manner  of  giving  notice  of  the  protest  should  be  stated 
in  the  protest  itself.  A  more  regular  course  would  have  been  to  direct 
the  time,  place  and  manner  of  giving  the  notice,  with  a  copy  thereof 
when  written,  to  be  subjoined  to,  endorsed  on,  or  annexed  to  the  pro- 
test. It  would  have  been  more  regular,  because  the  protest  and  the  no- 
tice are  in  their  nature  separate  and  distinct  things,  and  the  former  ought 
to  precede  the  latter.  The  awkward  phraseology  of  the  act  prevents 
the  insertion  here  of  any  form  under  it. 

15.  Bill  of  exce'ptions  by  defendant  to  opinion  of  circuit  court  admit- 
ting  note  as  evidence,  which  he  had  objected  to  on  the  ground  of 
variance.     1  Rob.  Prac.  344  to  348. 

B.  V.  C.  ^  D. — Be  it  remembered,  that  after  the  jury  were 
sworn  to  try  the  issue  joined  in  this  cause,  the  plaintiff",  to  main- 
tain the  said  issue  on  his  part,  offered  to  give  in  evidence  to  the 
jury,  as  the  note  on  which  this  action  is  founded,  a  writing  in 
the  following  words  and  figures,  to  wit :  (here  insert  the  note) : 
to  which  evidence  the  defendants  by  their  counsel  objected,  as 
improper  to  go  to  the  jury,  because  of  the  variance  between  the 
said  writing  so  offered  in  evidence,  and  the  note  described  in 
the  plaintiff's  declaration.  But  the  court,  being  of  opinion  that 
the  said  variance  is  immaterial,  overruled  the  objection  to  the 
said  evidence,  and  permitted  the  same  to  go  to  the  jury.  To 
which  opinion  the  defendants  by  their  counsel  excepted,  and 
prayed  that  these  their  exceptions  might  be  signed,  sealed  and 
enrolled  ;  which  is  done  accordingly. 

[seal.] 

16.  Bill  of  exceptions  by  plaijitiff  to  opi?iion  of  county  court  admit- 
ting evidence  offered  by  defendant.     1  Rob.  Prac.  344  to  348. 

A.  B.  V.  C.  D. — Be  it  remembered,  that  after  the  jury  were 
sworn  to  try  the  issue  joined  in  this  cause,  the  plaintiff^  to  main- 
tain the  said  issue  on  his  part,  gave  in  evidence  to  the  jury  (here 
state  the  evidence.)  And  thereupon  the  defendant,  to  maintain 
the  said  issue  on  his  part,  offered  to  give  the  following  evidence 
to  the  jury,  to  wit:  (here  state  the  substance  of  the  evidence 
objected  to.)  Whereupon  the  counsel  for  the  plaintiff"  insisted 
that  the  said  evidence,  so  off"ered  to  be  given  by  the  defendant, 
was  not  admissible  in  law  upon  the  said  issue,  and  moved  the 
court  to  exclude  the  same  from  going  to  the  jury.  But  the  court 
decided  that  the  evidence  so  offered  by  the  defendant  was  ad- 
missible, and  the  same  was  accordingly  admitted  to  the  jury, 


120  Trial  by  Jury. 

and  left  to  their  consideration.  Whereupon,  inasmuch  as  the 
exception  alleged  by  the  plaintiff  to  the  admissibility  of  the  said 
evidence,  and  which  he  prayed  that  the  court  would  allow,  has 
not  been  allowed,  he  the  said  plaintiff  has  now  written  the  same 
exception,  and  required  that  the  justices  of  the  said  court  would 
put  their  seals  hereunto  in  testimony  thereof;  and  the  said  jus- 
tices accordingly  do  so. 

[seal]  [seal] 

[seal]  ,  [seal] 

17.  Bill  of  exceptions  by  defendant  to  opinion  refusing  instruction 
ashed  for  by  him.     1  Rob.  Prac.  344  to  348. 

{As  last,  to)  And  thereupon  the  defendant,  to  maintain  the 
said  issue  on  his  part,  gave  in  evidence  to  the  jury,  that*  &c. 
(here  state  the  defendant's  evidence.)  Whereupon  the  counsel 
for  the  defendant  moved  the  court  to  instruct  the  jury  as  fol- 
lows, that  is  to  say,  (here  state  the  instruction  asked  for.)  But 
the  court  refused  to  give  the  said  instruction  to  the  jury.  To 
which  opinion  of  the  court  refusing  the  said  instruction,  the  de- 
fendant by  his  counsel  excepted,  and  tendered  this  his  bill  of 
exceptions,  which  he  prays  may  be  signed,  sealed  and  made  a 
part  of  the  record  in  the  cause ;  and  the  same  is  done  accor- 
dingly. 

*  It  is  advisable  always  to  state  the  substance  of  the  evidence,  or  at  least 
enough  of  it  to  shew  the  pertinency  of  the  instruction  which  is  asked,  to  the  case 
before  the  jury. 

18.  Entry  of  the  bill  of  exceptions.     1  Rob.  Prac.  348. 

At  the  foot  of  the  verdict  and  judgment,  or  other  entry  in  the  cause, 
insert  the  following 

Memorandum.  The  last  cause  being  one  wherein  a  supersedeas 
lies  to  a  higher  court,  the  plaintiff,  at  the  trial  thereof,  alleged  an 
exception,  and  prayed  that  the  court  would  allow  it ;  but  the 
same  was  not  allowed,  and  the  said  plaintiff  wrote  his  said  ex- 
ception, and  required  that  the  justices  would  put  their  seals  in 
testimony  thereof,  which  they  did  accordingly.  And  the  excep- 
tion so  written,  with  the  seals  of  the  said  justices,  is  ordered  to 
be  made  a  part  of  the  record  in  the  cause. 

Or,  more  briefly  as  follows : 

Memorandum.  On  the  trial  of  the  last  cause,  the  defendant 
by  his  attorney  excepted  to  an  opinion  of  the  court  given  upon 
the  said  trial,  and  tendered  his  bill  of  exceptions,  which  was  re- 
ceived, signed  and  sealed  by  the  court,  and  ordered  to  be  made 
part  of  the  record  in  the  cause. 


Trial  by  Jury.  121 

19.  Demurrer  to  evidence.     1  Rob.  Prac.  349. 

A.  B.  V.  C.  D. — Be  it  remembered,  that  after  the  jury  were 
sworn  to  try  the  issue  joined  in  this  cause,  the  defendant,  to 
prove  and  maintain  the  said  issue  on  his  part,  shewed  in  evi- 
dence to  the  jury,  by  one  witness  (E.  F.)  that  &c.  (here  state 
the  evidence.)  And  the  plaintiff  says  that  the  matter  aforesaid, 
so  shewn  in  evidence  to  the  jury  bj'  the  defendant,  is  not  suffi- 
cient in  law  to  maintain  the  said  issue  on  the  part  of  the  defen- 
dant, and  that  he' the  said  plaintiff  is  not  bound  by  the  law  of 
the  land  to  answer  the  same.  Wherefore,  for  want  of  sufficient 
matter  in  that  behalf  to  the  said  jury  shewn  in  evidence,  the 
said  plaintiff  prays  judgment,  and  that  the  jury  aforesaid  may 
be  discharged  from  giving  any  verdict  upon  the  said  issue,  and 
that  his  damages  by  reason  of  the  matters  complained  of  may 
be  adjudged  to  him  &c. 

If  the  demurrer  be  by  the  defendant,  then,  instead  of  what  follows 
the  word  Judgment,  say,  "  and  that  the  said  plaintiff  may  be  barred 
from  having  or  maintaining  his  aforesaid  action  thereof  against 
him  &c." 

20.  Joinder  by  defendant  in  plaintiff  ^s  demurrer  to  evidence. 

C.  D.  ads  A.  B. — And  the  said  defendant,  inasmuch  as  he 
hath  shewn  in  evidence  to  the  jury  sufficient  matter  to  maintain 
the  issue  upon  his  part,  and  which  the  said  defendant  is  ready  to 
verify,  and  inasmuch  as  the  said  plaintiff  doth  not  deny  or  in 
any  manner  answer  the  said  matter,  prays  judgment,  and  that 
the  said  plaintiff  may  be  barred  from  having  or  maintaining  his 
action  against  the  defendant,  and  that  the  jury  may  be  discharged 
from  giving  their  verdict  upon  the  said  issue. 

21.  Joinder  by  plaintiff  in  defendant's  demurrer  to  evidence. 

A.  B.  v.  C.  D. — And  the  said  plaintiff,  inasmuch  as  &c.  (as 
in  the  last  form,  substituting  merely  plaintiff  for  defendant,  and 
defendant  for  plaintiff)  prays  judgment,  and  his  damages  by  rea- 
son of  the  matters  complained  of,  to  be  adjudged  to  him  &c. 

22.  Entry  where _  there  is  a  demurrer  to  evidence.     1  Rob.  Prac. 

349.  371. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  &c.  who  being  elected,  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined,  the  defendant 
16 


122  I'rial  by  jury. 

filed  a  demurrer  to  the  evidence  of  the  plaintiff,  and  the  plaintiff 
filed  {or,  entered)  his  joinder  in  the  said  demurrer. 

1/  the  jury  are  discharged  without  giving  any  verdict,  say — 
Whereupon  the  jury  aforesaid,  by  the  assent  of  the  parties,  are 
discharged  from  giving  any  verdict  upon  the  premises. 

For  the  form  of  the  entry  where  there  is  a  verdict  assessing  damages 
conditionally,  or,  if  in  detinue,  where  the  price  and  damages  are  as- 
sessed conditionally,  see  the  next  chapter,  No.  27  and  28. 

23.  Jury  sworn,  and  having  partly  heard  the  evidence,  adjourned. 
1  Rob.  Prac.  354. 


This  day  came 
came  a  jury, 
sworn  the  tru 


came  the  parties  by  their  attorneys,  and  thereupon 
',  to  wit,  /.  K.  &c.  who  being  elected,  tried  and 
owvjiii  iiic  iiuth  to  speak  upon  the  issue  joined,  and  having  partly 
heard  the  evidence,  by  consent  of  the  parties,  and  with  the  as- 
sent of  the  court,  were  adjourned  till  tomorrow  morning,  ten 
o'clock. 

24.  Jury,  having  further  heard  the  evidence,  again  adjourned. 
1  Rob.  Prac.  354. 

This  day  came  &c.  and  the  jury  sworn  yesterday  to  try  the 
issue  in  this  cause  appeared  in  court  according  to  their  adjourn- 
ment, and  having  further  heard  the  evidence,  by  consent  of  the 
parties,  and  with  the  assent  of  the  court,  were  again  adjourned 
until  tomorrow  morning,  ten  o'clock. 

2d.  Jury,  having  fully  heard  the  evidence,  sent  out,  and  not  agree- 
ing, juror  withdrawn  and  cause  continued.    1  Rob.  Prac.  354. 

This  day  came  &c.  and  the  jury  sworn  to  try  the  issue  in  this 
cause  appeared  in  court  according  to  their  adjournment,  and 
having  fully  heard  the  evidence,  were  sent  out  of  court  to  con- 
sult of  their  verdict,  after  which  consultation  they  returned  into 
court  and  declared  that  they  could  not  agree  in  a  verdict : 
whereupon,  by  consent  of  the  parties,  and  with  the  assent  of 
the  court,  J.  R.  one  of  ihe  jurors  aforesaid  was  withdrawn,  and 
the  rest  of  the  jury  from  rendering  their  verdict  discharged. 
And  the  cause  is  continued  till  the  next  term,  for  a  new  trial  to 
be  had  therein. 


Trial  by  jury.  123 

26.  Jury,  having  fully  heard  the  evidence,  sent  out,  and  not  agree- 

ing, adjourned.     1  Rob.  Prac.  354. 

were  sent  out  of  court  to  consult  of  their  verdict,  and 

after  some  time  returned,  and  not  having  agreed  in  a  verdict, 
by  consent  of  the  parties  were  adjourned  till  tomorrow  morning, 
ten  o'clock. 

27.  Jury,  who  had  once  retired,  appeared  after  adjournment,  and 
after  again  retiring,  returned  a  verdict.     1  Rob.  Prac.  354. 

This  day  &c.  and  the  jury  sworn  to  try  the  issue  in  this  cause 
appeared  in  court  according  to  their  adjournment,  and  being 
again  sent  out  of  court  to  consult  of  their  verdict,  after  some 
time  returned,  and  upon  their  oath  do  say  &c. 

28.  Entry  where  one  of  the  jury,  instead  of  taking  an  oath,  makes  a 

solemn  affirmation. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 

came  a  jury,  to  wit,  A.  B.  &c.  who  being  elected,  tried  and 

sworn,  and  W.  D.  who  being  elected,  tried  and  charged,  the  truth 

to  speak  upon  the  issue  joined,  upon  their  oath  and  in  solemn 

form  do  say  &c. 


124  Verdict  and  judgment. 


CHAPTER  XIV. 

VERDICT    AND    JUDGMENT. 


1.    Verdict  on  writ  of  enquiry,  except  in  detinue.     1  Rob.  Prac. 

370. 

This  day  came  the  plaintiff  by  his  attorney,  and  a  jury,  to 
wit,  A.  B.  Sec.  and  the  said  jury  being  sworn  {or,  if  any  affirm, 
and  the  said  jury  being  all  sworn  except  C.  D.  who  was  charged) 
diligently  to  enquire  of  damages  in  this  suit,  upon  their  oath,  (or, 
if  any  affirm,  upon  their  oath  and  in  solemn  form)  do  say  that 
the  plaintiff  hath  sustained  damages  by  occasion  of 

{In  trespass  or  case  for  tort)  the  matters  in  the  declaration 
mentioned,  to  $ . 

{In  covenant)  the  breaches  assigned  in  the  declaration,  of  the 

covenant  therein   mentioned,  to  $ ,  and  they  allow  on  the 

said  damages  interest  from  the day  of till  paid. 

{In  assumpsit)  the  nonperformance  of  the  promises  and  as- 
sumptions in  the  declaration  mentioned,  to  $ ,  and  they  al- 
low on  the  said  damages  interest  from  the day  of 

till  paid. 

{In  debt  on  a  collateral  bond)  the  breaches  assigned  in  the  de- 
claration, of  the  condition  of  the  writing  obligatory  in  the  said 

declaration  mentioned,  to  $ ,  and  they  allow  on  the  said 

damages  interest  from  the day  of till  paid. 

{In  any  other  action  of  debt)  the  detention  of  the  debt  in  the 
declaration  demanded,  to  $ . 

2,    Verdict  on  writ  of  enquiry  in  detinue.     1  Rob.  Prac.  370. 

This  day  &c.  (as  last)  diligently  to  enquire  the  value  of  the 
slave  in  the  declaration  mentioned,  and  the  plaintiff's  da- 
mages by  reason  of  his  detention,  upon  their  oath  {or,  upon  their 
oath  and  in  solemn  form)  do  say  that  the  said  slave  is  of  the 
value  of  $  300,  and  that  the  plaintiff  hath  sustained  damages  by 
occasion  of  the  detention  of  the  said  slave,  to  $ . 


Verdict  and  judgment.  125 

3.  Verdict  upon  issue  or  issues,  where  the  finding  is  general  and  not 

extended  into  form.     1  Rob.  Prac.  355. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  &c.  who  being  elected,  tried  and 
sworn  {and  if  any  affirm,  say,  and  C.  D.  who  being  elected,  tried 
and  charged)  the  truth  to  speak  upon  the  issue  {or,  issues)  joined, 
upon  their  oath  {or,  if  any  affirm,  upon  their  oath  and  in  solemn 
form)  do  say  that  on  the  said  issue  {or,  issues)  joined  they  find 
for  the  plaintiff  {or,  defendant.) 

Or: — that  on  the  first  of  the  said  issues  they  find  for  the  plain- 
tiff, and  on  the  second  of  the  said  issues  they  find  for  the  defen- 
dant. 

4.  Verdict  upon  issue  or  issues,  where  the  finding  responds  to  the 

same,  or  is  extended  by  the  clerk  into  form. 

Where  the  plea  is  non  est  factum  do  say  that  the  writing 

obligatory  in  the  declaration  mentioned  is  not*  the  deed  of  the 
defendant,  as  the  plaintiff  hath  alleged. 

Where  the  j)lea  is  nil  debet that  the  defendant  doth  noff 

owe  to  the  plaintiff  the  principal,  interest  and  charges  of  pro- 
test {or,  the  debt  and  interest — or,  the  debt)  in  the  declaration 
demanded,  or  any  part  thereof^  in  manner  and  form  as  the  plain- 
tiff hath  complained  against  him. 

Where  the  plea  is  non  assumpsit that  the  defendant  did  not 

undertake  or  promise, X  in  manner  and  form  as  the  plaintiff  hath 
complained  against  him. 

Where  the  plea  is  not  guilty that  the  defendant  is  not\\ 

guilty  of  the  premises  laid  to  his  charge,  in  manner  and  form  as 
the  plaintiff  hath  complained  against  him. 

Where  there  is  a  plea  of  coverture that  at  the  time  of  ma- 
king the in  the  declaration  mentioned,  the  defendant  was 

and  still  is  the  wifeff  of  J.  K.  as  the  said  defendant  in  pleading 
hath  alleged. 

Where  duress  is  pleaded that  the  defendant,  at  the  time  of 

the  execution  of  the  writing  obligatory  in  the  declaration  raen- 

*  If  the  verdict  be  for  the  plaintiff,  omit  the  word  not. 

t  If  the  verdict  be  for  the  plaintiff,  the  word  not  and  the  words  or  any 
part  thereof  will  be  omitted. 

\  If  the  verdict  be  for  the  plaintiff,  say did  undertake  and  pro- 
mise. 

II  If  the  verdict  be  for  the  plaintiff,  omit  the  word  not. 

tt  If  the  verdict  be  for  the  plaintiff,  say was  and  yet  is  a  feme 

sole  and  not  the  wife. 


126  Verdict  and  judgments 

lioned,  was  imprisoned  b)'^  the  plaintiffs  and  others,  of  their 
covin,  at  the  county  in  the  said  declaration  mentioned,  and  there 
in  prison  detained  until  the  said  defendant,  by  force,  duress, 
threats,  and  restraints  of  imprisonment,  the  writing  obligatory 
aforesaid  to  the  said  plaintiffs  then  and  there  made,  as  the  said 
defendant  in  pleading  hath  alleged. 

Where  plea  is  non  damni/icaius that  the  plaintiff  has  not 

been  damnified  by  reason  of  any  matter,  cause  or  thing  set  forth 
in  the  condition  of  the  writing  obligatory  mentioned  in  the  de- 
claration, as  the  defendants  in  pleading  have  alleged. 

Where  plea  is  that  action  loas  not  commenced  in  due  time that 

this  action  was  notW  commenced  within years  next  after 

the  cause  thereof,  as  the  said  defendant  in  pleading  hath  alle- 
ged. Or,  if  this  he  one  of  two  issues,  enter  it  thus:  And  further 
the  jurors  aforesaid  upon  their  oath  (or,  upon  their  oath  and  in 
solemn  form)  do  say  that  this  action  was  notXX  commenced  within 

years  next  after  the  cause  thereof,  as  the  said  defendant 

in  his  second  plea  hath  alleged. 

\\  If  the  verdict  be  for  the  plaintiff,  say was  co7nmenced  within 

years  next  after  the  cause  thereof,  as  the  plaintiff  by  his  repli- 


cation to  the  defendant's  second  plea  hath  alleged. 

5.   Verdict  for  plaintiff  in  action  against  oficer  for  an  escape,  to 
which  not  guilty  is  pleaded.     1  Rob.  Prac.  358. 

oath  do  say,  that  the  said  C.  D.  in  the  declaration  named 


did  escape  with  the  consent  of  the  defendant's  officers  {or,  did 
escape  through  the  negligence  of  the  defendant's  officers — or, 
might  have  been  retaken,  and  the  defendant  and  his  officers  ne- 
glected to  make  immediate  pursuit)  and  the  said  defendant  is 
guilty  in  manner  and  form  as  the  plaintiff  against  him  hath 
complained. 

6.    Verdict  for  plaintiff  on  plea  of  no  assets.     1  Rob.  Prac. 

359,  60. 

oath  do  say,  that  at  the  commencement  of  this  suit,  and 


at  the  time  of  the plea  pleaded  by  the  defendant,  the  said 

defendant  had  goods  and  chattels  which  were  of  the  said  J.  R. 
deceased  at  the  time  of  his  death,  in  the  hands  of  him  the  said 

defendant  to  be  administered,  to  the  value  of  $ {or,  sufficient 

to  satisfy  the  plaintiff'' s  demand.) 

Or,  in  lieu  of  the  words  in  italics,  these  words :  which  goods  and 
chattels  in  the  hands  of  the  defendant  to  be  administered,  were, 
at  the  commencement  of  this  suit,  to  the  value  of  $ ,  and 


Verdict  and  jiidgment.  127 

were,  at  the  time  of  the plea  pleaded  by  the  defendant,  to 

the  value  of  $ . 

7.  Verdict  for  plaintiff  on  plea  of  debts  of  superior  dignity  to  a 
greater  amount  than  the  assets  in  hand.     1  Rob.  Prac.  359,  60. 

oath  do  say,  that  at  the  commencement  of  this  suit,  and 

at  the  time  of  the plea  pleaded  by  the  defendant,  the  said 

defendant  had  goods  and  chattels  which  were  of  the  said  W.  C. 
deceased  at  the  time  of  his  death,  in  his  hands  to  be  adminis- 
tered, of  greater  value  than  was  sufficient  to  satisfy  the  money 
due  and  owing  on  the  judgments  and  the  writing  obligatory  in 
the  said  plea  mentioned,  and-  the  goods  and  chattels  over  and 
beyond  what  was  sufficient  to  satisfy  the  said  judgments  and 

the  said  writing  obligatory,  were  to  the  value  of  S at 

the  commencement  of  this  suit,  and  to  the  value  of  $ at 

the  time  of  the plea  pleaded  by  the  defendant.     {Or, — 

were,  at  the  commencement  of  this  suit,  and  at  the  time  of  the 

said plea  pleaded  by  the  defendant,  sufficient  to  satisfy  the 

plaintiff's  demand.) 

8.  Verdict  in  action  of  debt  against  an  heir,  upon  replication  under 

the  statute  to  plea  of  riens  per  discent.     1  Rob.  Prac.  360. 

that  the  defendant  E.  F.  had  lands,  tenements  and  here- 


ditaments descended  to  him  from  his  ancestor  the  said  C.  D. 
before  the  commencement  of  this  suit,  and  that  the  said  lands, 
tenements  and  hereditaments  so  descended  were  and  are  of  the 
value  of  $ . 

9.   Verdict  where  one  of  the  defendants  is  a  devisee  who  had  alienedj 
and  the  replication  is  similar.     1  Rob.  Prac.  393. 

that  the  defendant  G.  H.  had  lands,  tenements  and  here- 


ditaments devised  to  him  by  the  said  C.  D.  before  the  com- 
mencement of  this  suit,  and  that  the  lands,  tenements  and  here- 
ditaments so  devised  to  him  were  and  are  of  the  value  of  $ . 

10.    Verdict  allowing  interest  and  fixing  period  at  which  it  shall  com- 
mence.    1  Rob.  Prac.  361. 

And  the  said  jury  ascertain  the  principal  sum  due  to  be 

-,  and  they  allow  interest  thereon,  and  fix  the day  of 


as  the  period  at  which  the  said  interest  shall  commence. 


128  Verdict  and  judgment. 

11.  Where  rate  of  interest  is  governed  by  the  laws  of  another  state. 

1  Rob.  Prac.  362. 

And  further  the  said  jury  say,  that  the  contract  was  made 

and  ought  to  have  been  performed  in  the  state  of ,  and  that 

the  rate  of  interest  allowed  by  the  laws  of  that  state  is per 

centum  per  annum. 

12.  Verdict  for  plaintiff  in  debt  upon  a  penal  obligation.     1  Rob. 

Prac.  363,  4. 

oath  do  say,  that  upon  the  issue  joined  they  find  for  the 

plaintiff,  but  that  the  sum  demanded  is  a  penalty,  and  there  is 

only  due  to  the  said  plaintiff  the  principal  sum  of  $ ,  with 

interest  thereon  from  the day  of . 

13.  Verdict  assessing  damages  for  detention,  where  principal  and  in- 

terest  exceed  the  penalty.     1  Rob.  Prac.  364. 

oath  do  say,  that  upon  the  issue  joined  they  find  for  the 

plaintiff,  and  they  ascertain  the  principal  sum  due  to  be  $ , 

and  allow  interest  thereon  from  this  day  ;  and  they  further  say 
that  the  plaintiff  hath  heretofore  sustained  damages,  by  occa- 
sion of  the  detention  of  his  debt,  to  $ besides  his  costs. 

14.  Verdict  for  plaintiff  in  debt  upon  a  note  or  single  bill.     1  Rob. 

Prac.  365,  6. 

oath  do  say,  that  upon  the  issue  (or,  issues)  joined  they 


find  for  the  plaintiff,  and  they  ascertain  $ to  be  the  princi- 
pal sum  due,  and  they  allow  interest  thereon,  and  fix  the 

day  of as  the  period  at  which  the  interest  shall  commence. 

15.   Verdict  for  plaintiff  in  debt  on  note,  responding  to  plea  of  nil 
debet.     1  Rob.  Prac.  365. 

oath  do  say,  that  the  defendant  doth  owe  to  the  plaintiff 

the  principal,  interest  and  charges  of  protest  in  the  declaration 
demanded,  and  they  assess  the  plaintiff's  damages,  by  occasion 
of  the  detention  of  the  said  principal,  to  one  cent  besides  his 
costs. 

If  there  be  no  charges  of  protest that  the  defendant  doth 

owe  to  the  plaintiff  the  debt  and  interest  in  the  declaration  de- 
manded. 

If  interest  be  not  demanded that  the  defendant  doth  owe  to 

the  plaintiff  the  debt  in  the  declaration  demanded,  and  they  do 


Verdict  and  judgment.  129 

allow  on  the  said  debt  interest  from  the day  of till 

paid. 

If  only  part  of  the  debt  is  found  to  be  due that  the  defendant 

doth  owe  to  the  plaintiff  $ parcel  of  the  debt  in  the  decla- 
ration demanded,  and  on  the  sum  so  found  to  be  due  they  allow 
interest  from  the day  of till  paid. 

16.  Verdict  for  plaintiff  in  debt  on  single  bill,  responding  to  plea  of 

payment.     1  Rob.  Prac.  356.  365. 

oath  do  say,  that  the  debt  and  interest  in  the  declaration 

demanded  have  not  been  paid,  as  the  defendant  in  pleading  hath 
alleged. 

If  interest  be  not  demanded that  the  debt  in  the  declaration 

demanded  has  not  been  paid,  as  the  defendant  in  pleading  hath 
alleged,  and  they  do  allow  on  the  said  debt  interest  from  the 
day  of till  paid. 

If  only  part  of  the  debt  remain  unpaid that  $ ,  parcel 

of  the  debt  in  the  declaration  demanded,  has  not  been  paid,  and 
they  allow  interest  thereon  from  the day  of till  paid. 

17.  Verdict  for  plaintiff  in  debt  on  a  bond  with  collateral  condition. 

1  Rob.  Prac.  366. 

oath  do  say,  that  upon  the  issue  {or,  issues)  joined  they 

find  for  the  plaintiffs,  and  they  assess  the  damages  which  the 
plaintiffs  have  sustained  by  occasion  of  the  breaches  assigned  in 
the  declaration,  of  the  condition  of  the  writing  obligatory  in  the 

said  declaration   mentioned,  to  $ ,  and  they  allow  on  the 

said  damages  interest  from  the day  of till  paid. 

IS.   Verdict  for  plaintiff  in  covenant.     1  Rob.  Prac.  366. 

that  on  the  issue  {or,  issues)  joined  they  find  for  the 

plaintiff,  and  they  assess  the  damages  which  the  plaintiff  has 
sustained  by  occasion  of  the  breaches  assigned  in  the  declara- 
tion, of  the  covenants  therein  mentioned,  to  $ ,  and  allow 

on  the  said  damages  interest  from  the day  of till  paid. 

19.   Verdict  for  plaintiff  in  assumpsit.     T  Rob.  Prac.  356.  366. 

that  on  the  issue  joined  they  find  for  the  plaintiff,  and 


they  assess  the  damages  which  the  plaintiff  has  sustained  by 
occasion  of  the  nonperformance  of  the  promises  and  assump- 
tions in  the  declaration  mentioned,  to  $ ,  and  allow  on  the 

said  damages  interest  from  the day  of till  paid. 

17 


130  Verdict  and  judgment. 

20.   Verdict  for  plaintiff  responding  to  plea  of  non  assumpsit. 

that  the  defendant*  did  undertake  and  promise  in  man- 
ner and  form  as  the  plaintiff  has  complained,  and  they  assess 
the  plaintiff's  damages  by  reason  of  the  not  performing  those 
promises  and  undertakings  {or,  that  promise  and  undertaking) 
to  $ ,  and  allow  &c.  (as  last.) 

*  If  the  plea  was  non  assumpsit  by  testator  or  intestate,  say "  that 

the  defendant's  testator  {or,  intestate)  in  his  lifetime  did  &c." 

21.  Verdict  for  defendant  responding  to  plea  of  non  assumpsit  as  to 

part  and  tender  as  to  residue. 

that  the  defendant  did  not  undertake  or  promise  to  an 

amount  beyond  the  sum  of  $ in  his  plea  mentioned,  and 

that  the  said  defendant  did  tender  and  offer  to  pay  to  the  plain- 
tiff the  said  sura  of  $ ,  in  manner  and  form  as  the  said  de- 
fendant hath  alleged. 

22.  Response  in  favour  of  defendant  as  to  tender  of  part,  and  in 

favour  of  plaintiff  upon  plea  of  non  assumpsit. 

that  the  defendant  did*  tender  and  offer  to  pay  to  the 

plaintiff  the  sum  of  $ in  his  plea  mentioned,  but*  that  the 

said  defendant  did  undertake  and  promise  to  an  amount  beyond 

that  sum,  that  is  to  say,  to  the  amount  of  $ ,  parcel  of  the 

several  suras  of  money  in  the  declaration  mentioned,  in  manner 
and  form  as  the  plaintiff  hath  complained  against  him,  and  they 
assess  the  plaintiff's  damages  by  reason  of  the  not  performing 
the  promises  and  undertakings  in  the  said  declaration  mentioned, 
to  $ ,  and  allow  &c. 

*  If  both  parts  of  the  plea  be  found  for  the  plaintiff,  then,  afler  did 
insert  not,  and  instead  of  but  use  the  word  and. 

23.  Response  in  assumpsit  to  plea  of  infancy. 

that  the  defendant,  at  the  time  of  the  making  of  the  se- 


veral promises  in  the  declaration  mentioned,  was*  an  infant 
within  the  age  of  twenty-one  years,  as  the  said  defendant  hath 
alleged. 

*  If  the  issue  be  found  for  the  plaintiff,  then,  afler  was  insert  not,  and 
after  responding  to  the  issue,  state  the  assessment  of  damages  as  usual. 


Verdict  and  judgment.  131 

24.   Verdict  in  action  of  assumpsit  for  sterling  money,  assessing 
damages  in  current  money. 

that  the  defendant  did  undertake  and  promise  in  man- 


ner and  form  as  the  plaintiff  has  complained,  and  they  assess 
the  plaintiff's  damages  by  reason  of  the  not  performing  those 
promises  and  undertakings  (or,  that  promise  and  undertaking) 
to  .£294.  12.  current  money  of  this  commonwealth,  and  allow 

on  the  said  damages  interest  from  the day  of till 

paid. 

Note.  Where  an  action  of  assumpsit  was  brought  for  .£  171.  5.  4. 
sterling,  of  the  value  of  .£228.  7.  laying  the  damages  at  .£500.  and 
upon  the  plea  of  non  assumpsit  the  jury  found  for  the  plaintiff  and  as- 
sessed his  damages  to  £294,  12.  current  money,  it  was  held  that  the 
verdict  was  correct — that  the  jury  had  very  properly  settled  the  value  of 
the  sterling  money  themselves,  instead  of  leaving  it  to  be  ascertained  by 
the  court.     Barnett  S^c.  v.  Watson  S^c.  1  Wash.  372. 

25.  Verdict  for  plaintiff  in  detinue,  responding  to  i)lea  of  non  detinet. 

1  Rob.  Prac.  367. 

that  the  defendant  doth  detain  the  slaves  Tab,  Betty  and 

Jack  in  the  declaration  mentioned,  in  manner  and  form  as  the 
plaintiff  against  him  hath  complained,  and  that  the  said  Tab  is 
of  the  value  of  $  200,  and  the  said  Betty  and  Jack  each  of  the 
value  of  $  300  ;  and  they  do  assess  the  damages  which  the  plain- 
tiff hath  sustained  by  occasion  of  the  detention  of  the  said  slaves, 
to  $ besides  his  costs. 

26.  Verdict  for  plaintiff  in  action  for  a  tort.     1  Rob.  Prac.  369. 

that  on  the  issue  joined  they  find  for  the  plaintiff,  and 

they  assess  the  damages  which  the  plaintiff  has  sustained  by 
occasion  of  the  matters  in  the  declaration  mentioned,  to  $ . 

27.  Verdict  where  there  is  a  demurrer  to  evidence,  assessing  damages 

conditionally.     1  Rob.  Prac.  371. 

After  making  use  of  No.  22.  in  the  last  chapter  (p.  121.)  as  far 
as  it  goes,  proceed  thus :  Whereupon  it  is  told  to  the  jurors  afore- 
said that  they  shall  enquire  what  damages  the  plaintiff  has  sus- 
tained by  reason  of  the  matter  by  him  shewn  in  evidence,  in 
case  judgment  shall  be  given  for  the  plaintiff  upon  the  said  evi- 
dence. And  the  jurors  aforesaid  upon  their  oath  do  say,  that  in 
case  judgment  shall  be  given  for  the  plaintiff  upon  the  evidence 
aforesaid,  then  they  assess  the  damages  of  the  plaintiff  by  him 


132  Verdict  and  judgment. 

sustained  by  reason  of  the  matter  by  him  shewn  in  evidence  as 

aforesaid,  to  $ ,  and  fix  the day  of as  the  period 

at  which  interest  shall  commence  thereon.*  And  thereupon  the  jury 
aforesaid,  by  the  assent  of  the  parties,  are  discharged  from  giv- 
ing any  farther  verdict  upon  the  premises. 

*  These  words  will  of  course  be  omitted  if  interest  be  not  allowed. 

28.    Verdict  where  evidence  is  demurred  to  in  detinue,  assessing  inice 
and  damages  conditionally.     1  Rob.  Prac.  371. 

Pursue  direction  given  in  last  form,  and  then  "proceed  thus :  Where- 
upon it  is  told  to  the  jurors  aforesaid  that  they  shall  enquire  the 
value  of  the  slave  in  the  declaration  mentioned,  and  the  plain- 
tiff's damages  by  reason  of  his  detention,  in  case  judgment  shall 
be  given  for  the  plaintiff  upon  the  said  evidence.  And  the  ju- 
rors aforesaid  upon  their  oath  do  say,  that  in  case  judgment 
shall  be  given  for  the  plaintiff  upon  the  evidence  aforesaid,  they 
ascertain  the  said  slave  to  be  of  the  value  of  $  300,  and  that  the 
plaintiff  hath  sustained  damages  by  occasion  of  the  detention  of 
the  said  slave,  to  $ .     And  thereupon  &c.  (as  last.) 

29.  Special  verdict.     1  Rob.  Prac.  372. 

A.  B.  v.  CD. 

We,  the  jury  sworn  to  speak  the  truth  upon  the  issue  joined, 
upon  our  oath  say  that  &c.  {stating  the  facts  proved  at  the  trial, 
with  certainty  and  precision.)  But  whether  or  not,  upon  the  whole 
matter  aforesaid,  the  issue  joined  be  for  the  plaintiff"  or  for  the 
defendant,  the  jury  do  not  know,  and  therefore  they  pray  the 
advice  of  the  court ;  and  if  upon  the  whole  matter  it  shall  seem 
to  the  court  that  the  issue  is  for  the  plaintiff,  then  the  jury  find 
for  the  plaintiff  upon  the  said  issue,  and  in  that  case  they  assess 

the  damages  of  the  plaintiff  to  $ ,  and  fix  the day 

of -as  the  period  at  which  interest  shall  commence  on 

the  said  damages.  But  if  upon  the  whole  matter  aforesaid  it 
shall  seem  to  the  court  that  the  issue  is  for  the  defendant,  then 
the  jury  find  for  the  defendant  upon  the  said  issue. 

30,  Entry  of  special  verdict.     1  Rob.  Prac.  372. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  &c.  who  being  elected,  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined,  upon  their  oath 
returned  a  special  verdict  in  these  words  :  (Here  record  the  spe- 
cial verdict.) 


Verdict  and  judgment.  133 

31.  Special  verdict  set  aside  and  venire  de  novo  awarded.'^l  Rob. 

Prac.  372,  3.  "" 

The  special  verdict  in  this  cause  being  defective  and  uncer- 
tain, the  same  is  set  aside,  and  a  venire  de  novo  awarded. 

32.  Verdict  for  plaintiffs  subject  to  opiiiion  on  a  point  reserved. 

1  Rob.  Prac.  373. 

This  day  canae  &c.  and  thereupon  came  a  jury,  to  wit,  A.  B. 
&c.  who  being  elected,  tried  and  sworn  the  truth  to  speak  upon 
the  issue  joined,  upon  their  oath  do  say  that  &c.  (here  the  case 
is  to  be  stated  so  far  as  is  material  to  understand  the  particular 
point  which  is  reserved.)  And  if  the  court  shall  be  of  opinion 
that  &c.  (here  state  the  point)  then  they  find  for  the  plaintiff  on 
the  issue  joined,  and  assess  his   damages  by  occasion  of  the 

matters  in  the  declaration  mentioned  to  $ ,  and  fix  the 

day  of as  the  period  at  which  interest  shall  com- 
mence on  the  said  damages ;  but  if  the  court  shall  be  of  opi- 
nion that  &c.  then  they  find  for  the  defendant  on  the  said 
issue. 

33.  Verdict  reserving  point  set  aside,  and  venire  de  novo  awarded. 

1  Rob.  Prac.  373,  4. 

The  point  reserved  at  the  trial  of  this  cause  being  upon  a 
case  stated  too  imperfectly  for  the  court  to  determine  the  ques- 
tion of  law  arising  thereupon,  it  is  ordered  that  the  verdict  of 
the  jury  be  set  aside,  and  a  venire  de  novo  awarded. 

34.  Case  agreed  in  lieu  of  a  special  verdict.     1  Rob.  Prac.  374. 

This  day  came  the  parties  by  their  attorneys,  and  a  case  was 
agreed  by  them,  to  be  argued  in  lieu  of  a  special  verdict,  which 
case  is  in  the  words  following,  to  wit :  (Here  insert  it.) 

35.   Case  agreed  set  aside.     1  Rob.  Prac.  374. 

The  case  agreed  in  this  cause  being  defective  and  uncertain, 
the  same  is  set  aside,  and  a  venire  de  novo  awarded. 

36.  Motion  for  new  trial,  and  part  of  damages  being  released,  mo- 
tion overruled.     1  Rob.  Prac.  379. 

The  defendant,  by  his  attorney,  this  day  moved  the  court  to 
set  aside  the  verdict  rendered  in  this  cause,  and  grant  him  a 


134  Verdict  and  judgme?it. 

new  trial  therein,  upon  the  ground  that  the  damages  assessed 
by  the  jury  exceed  those  laid  in  the  declaration  or  stated  in  the 
writ:*  whereupon  the  plaintiff  in  open  court  released  to  the  de- 
fendant $ parcel  of  the  said  damages,  and  the  motion  of 

the  defendant  is  therefore  overruled,  and  it  is  considered  by  the 
court  that  the  plaintiff  recover  &c. 

*  In  heu  of  the  words  in  itahcs,  the  words  "  are  excessive"  may  be 
inserted,  when  better  adapted  to  the  case. 

37.  Motion  for  new  trial  granted.     1  Rob.  Prac.  375  to  380. 

On  the  motion  of  the  defendant  by  his  attorney,  and  for  rea- 
sons appearing  to  the  court,  the  verdict  rendered  in  this  cause 
is  set  aside,  and  a  new  trial  granted  the  said  defendant,  upon 
condition  of  his  paying  the  costs  of  the  former  trial. 

38.  Where  some  defendants  are  convicted  and  others  acquitted^  new 
trial  granted  the  convicted  defendants.     1  Rob.  Prac.  379,  80. 

On  the  motion  of  the  defendants  A.  B.  and  C.  D.  by  their  at- 
torney, and  for  reasons  appearing  to  the  court,  the  verdict  ren- 
dered in  this  cause  is  set  aside  as  to  those  defendants,  and  a  new 
trial  is  granted  them,  upon  condition  of  their  paying  the  costs 
of  the  former  trial.  But  the  said  verdict  stands  as  to  the  defen- 
dants who  are  acquitted. 

39.  Where  damages  are  assessed  against  one  defendant  who  made  de- 
fault, and  the  others  having  pleaded  are  acquitted,  new  trial  grant- 
ed as  to  one  of  the  acquitted  defendants.     Pierce  v.  Harris  Sfc. 
10  Bingh.  331.     2b  Eng.  Com.  Law  Rep.  155. 

In  this  cause,  in  which  a  verdict  has  been  rendered  for  all  the 
defendants  except  the  defendant  P.  who  suffered  judgment  to 
go  by  default,  and  against  whom  damages  have  been  assessed, 
the  plaintiff  by  his  attorney  moved  the  court  to  set  aside  the 
verdict  as  to  the  defendant  H.  And  the  court,  being  dissatisfied 
with  the  verdict  in  favour  of  that  defendant,  is  of  opinion  that 
the  case  as  to  him  ought  to  be  submitted  to  the  consideration  of 
a  new  jury,  provided  the  plaintiff  will  pay  to  all  the  defendants 
except  the  said  defendant  P.  their  costs  by  them  about  their  de- 
fence heretofore  expended,  and  also  enter  a  nolle  prosequi  as  to 
all  the  defendants  except  the  said  H.  and  P.  And  it  is  accord- 
ingly ordered  that  as  to  the  said  defendant  H.  the  verdict  be 
set  aside,  and  a  new  trial  had  against  him,  upon  those  condi- 
tions. But  the  defendant  P.  who  has  not  joined  in  opposing  the 


Verdict  and  judgmetit.  135 

plaintlflf's  application,  is  not  to  be  prejudiced  by  the  new  as- 
sessment of  damages  which  may  be  made  at  the  next  trial.  As 
to  him  the  sum  already  assessed  is  to  be  considered  the  maxi- 
mum  to  which  he  can  be  made  liable ;  so  that,  although  he  may 
be  liable  to  less,  it"  upon  the  new  trial  the  jury  find  less,  yet  he 
is  not,  under  any  circumstances,  to  be  charged  with  more. 

40.  Motion  for  new  trial  being  overruled,  opinion  of  court  excepted 

to.     1  Rob.  Prac.  381,  2,  3. 

The  defendant  by  his  attorney  moved  the  court  to  set  aside 
the  verdict  rendered  in  this  cause,  and  grant  him  a  new  trial 
therein,  upon  the  ground  that  the  said  verdict  is  contrary  to  evi- 
dence ;  which  motion  was  overruled,  and  the  defendant  tendered 
a  bill  of  exceptions,  setting  forth  the  facts  proved  upon  the  trial, 
which  bill  was  received,  signed  and  sealed  by  the  court,  and  or- 
dered to  be  made  a  part  of  the  record  in  the  cause. 

41.  Motion  for  new  trial  being  granted,  opinion  of  court  excepted  to. 

1  Rob.  Prac.  383,  4. 

On  the  motion  of  the  plaintiff  by  his  attorney,  and  for  reasons 
appearing  to  the  court,  the  verdict  rendered  in  this  cause  is  set 
aside,  and  a  new  trial  granted  the  said  plaintiff,  upon  condition 
of  his  paying  the  costs  of  the  former  trial.  Whereupon  the  de- 
fendant, by  his  attorney,  tendered  a  bill  of  exceptions  to  the 
opinion  of  the  court  setting  aside  the  said  verdict  and  granting 
a  new  trial,  which  bill  was  received,  signed  and  sealed  by  the 
court,  and  ordered  to  be  made  a  part  of  the  record  in  the  cause. 

42.  Judgment  arrested  because  verdict  was  rendered  as  upon  an  issue^ 
when  no  plea,  had  been  fled.  1  Rob.  Prac.  386,  7.  M  ^Million  v. 
Dobbins,  9  Leigh  422. 

The  plaintiff  {or,  defendant)  by  his  attorney  saith  that  judg- 
ment ought  not  to  be  given  on  the  verdict  in  this  cause,  because 
the  said  verdict  purports  to  have  been  rendered  upon  an  issue, 
and  though  the  record  states  that  the  jury  were  sworn  to  try  the 
issue  joined,  it  does  not  shew  that  any  plea  was  filed  by  the  de- 
fendant upon  which  issue  could  have  been  joined.  Whereupon 
the  matters  of  law  arising  upon  the  said  plea  in  arrest  of  judg- 
ment being  argued,  it  seems  to  the  court  that  no  judgment  ought 
to  be  given  on  the  said  verdict.  And  it  is  ordered  that  the  same 
be  set  aside. 


136  Verdict  and  judgment- 

43.  Motion  in  arrest  of  judgment  overruled^  and  judgment  for  plain- 

tiff. 

The  defendant  by  his  attorney  saith  that  judgment  ought  not 
to  be  given  on  the  verdict  in  this  cause,  because  &c.  (state  the 
reasons.)  Whereupon  the  matters  of  law  arising  upon  the  said 
plea  in  arrest  of  judgment  being  argued,  it  seems  to  the  court 
that  after  the  said  verdict,  judgment  ought  not  to  be  stayed  for 
the  cause  assigned  :  Therefore  it  is  considered  that  the  plain- 
tiff recover  &c.  (according  to  the  nature  of  the  case.) 

44.  Judgment  for  plaintiff,  notwithstanding  failure  to  respond  to  one 
of  the  issues  ;  it  being  immaterial.    Ray  v.  Clemens,  6  Leigh  600. 

The  defendant  by  his  attorney  saith  that  judgment  ought  not 
to  be  given  on  the  verdict  in  this  cause,  because  the  said  verdict 
does  not  respond  to  the  issue  joined  on  the  second  plea.  Where- 
upon the  matters  of  law  arising  upon  the  said  plea  in  arrest  of 
judgment  being  argued,  it  seems  to  the  court  that  the  second 
plea  is  bad,  and  the  issue  joined  upon  it  immaterial,  and  there- 
fore that  judgment  ought  not  to  be  stayed  for  the  cause  assigned. 
Whereupon  it  is  considered  that  the  plaintiff  recover  &c.  (accord- 
ing to  the  nature  of  the  case.) 

45.  Judgment  for  plaintiff,  notwithstanding  verdict  for  defendant  on 
one  of  the  issues;  it  being  immaterial.  The  People  v.  Haddock, 
12  Wend.  475. 

After  stating  the  verdict,  'proceed  as  follows :  Arjd  the  court  being 
of  opinion  that  the  plaintiffs  are  entitled  to  judgment  notwith- 
standing the  verdict  for  the  defendant  on  the  issue  joined  on  the 

plea,  because  the  said  issue  does  not  go  to  the  merits  of 

the  cause,  it  is  therefore  considered  that  the  plaintiff  recover  &c. 
(according  to  the  nature  of  the  case.) 

46.  Verdict  and  judgment  under  act  of  April  16.  1831,  where  defen- 
dant is  relieved  against  his  single  bill  in  toto.     1  Rob.  Prac.  229. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  Sec.  who  being  elected,  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined  on  the  defendant's 
third  plea,  upon  their  oath  do  say  that  on  the  said  issue  they 
find  for  the  defendant,  and  that  the  said  defendant  is  entitled  to 
relief  against  the  obligation  of  the  contract  on  which  this  action 
is  founded,  for  the  whole  amount  thereof:  Therefore  it  is  con- 
sidered by  the  court  that  the  plaintiff  take  nothing  by  his  bill, 


Verdict  and  jvdgmerU.  137 

but  for  his  false  clamour  be  in  mercy  &c.  and  that  the  said  de- 
fendant go  thereof  without  day,  and  recover  against  the  plaintiff 
his  costs  by  him  about  his  defence  in  this  behalf  expended. 

47.  Verdict  and  judgment  under  same  act,  where  defendant  is  relieved 

against  his  obligation  in  part.     1  Rob.  Prac.  229. 

that  on  the  said  issue  they  find  for  the  defendant,  and 

that  the  amount  for  which  the  defendant  is  entitled  to  relief 
against  the  obligation  of  his  contract,  by  reason  of  the  matters 
mentioned  in  his  said  plea,  is  $ :  Therefore  it  is  consi- 
dered by  the  court  that  the  said  amount  be  set  off  against  the 
plaintiff's  demand,  and  that  the  plaintiff  recover  against  the  de- 
fendant S ,  the  residue  of  the  debt  in  the  declaration  de- 
manded, with  interest  thereon  to  be  computed  after  the  rate  of 
six  per  centum  per  annum  from  the day  of till  pay- 
ment, and  his  costs  by  him  about  his  suit  in  this  behalf  expen- 
ded.    And  the  said  defendant  in  mercy  &c. 

48.  Verdict  and  judgment  under  same  act,  where  the  jury  assess  da- 

mages less  than  plaintiff  ^s  demand.     1  Rob.  Prac.  229. 

that  on  the  said  issue  they  find  for  the  defendant,  and 

they  do  assess  the  damages  which  the  defendant  has  sustained 
by  reason  of  the  matters  pleaded  by  him,  to  $ :  There- 
fore it  is  considered  by  the  court  that  the  same  be  allov/ed  and 
applied  as  a  set-off  against  the  plaintiff's  demand,  and  that  the 
plaintiff  recover  &c.  (as  last.) 

49.  Verdict  and  judgment  under  same  act,  where  the  jury  assess  da- 

mages exceeding  plaintiff^ s  demand.     1  Rob.  Prac.  229. 

that  on  the  said  issue  they  find  for  the  defendant,  and 

they  do  assess  the  damages  which  the  defendant  has  sustained 

by  reason  of  the  matters  pleaded  by  him,  to  $ ,  and  fix  the 

day  of as  the  date  from  which  interest  is  to  be  com- 
puted thereon.  And  the  demand  which  the  defendant  has  es- 
tablished against  the  plaintiff  being  greater  in  amount  than  the 
demand  established  by  the  plaintiff  against  him,  it  is  therefore 
considered  by  the  court  that  the  plaintiff  take  nothing  by  his  bill, 
but  for  his  false  clamour  be  in  mercy  &c.  And  the  excess  of 
the  defendant's  demand  amounting  to  $ ,  with  interest  there- 
on from  the day  of ,  it  is  further  considered  that  the 

defendant  recover  against  the  plaintiff  the  said  excess,  with  in- 
terest thereon  to  be  computed  after  the  rate  of  six  per  centum 
18 


138  Verdict  and  judgment. 

per  annum  from  the  said day  of till  payment,  and 

his  costs  by  him  about  his  defence  in  this  behalf  expended. 

50.  Verdict  finding  defefidant  guilty  of  dealing  with  a  slave,  and 

judgment,  under  act  in  R.  C.  1819,  p.  426.  <^  19. 

upon  the  issue  joined,  upon  their  oath  do  say  that  the 

defendant  is  guilty  of  dealing  with  the  slave  in  the  declaration 
mentioned,'  without  the  consent  of  the  plaintiff,  in  manner  and 
form  as  the  plaintiff  has  complained,  and  that  the  things  bought 
and  received  by  him  of  the  said  slave  {or,  sold  by  him  to  the 
said  slave)  are  of  the  value  of  $ :  Therefore  it  is  con- 
sidered by  the  court  that  the  plaintiff  recover  against  the  defen- 
dant $ ,  being  four  times  the  value  of  the  things  so  bought 

and  received  {or,  sold)  and  his  costs  by  him  about  his  suit  in  this 
behalf  expended.     And  the  said  defendant  in  mercy  &c. 

51.  Verdict  and  judgment  for  plaintiff  in  debt  qui  tarn,  on  plea  of 

nil  debet. 

that  the  defendant  doth  owe  the  $  200  in  the  declaration 


mentioned,  in  manner  and  form  as  the  plaintiff  hath  complained  : 
Therefore  it  is  considered  by  the  court  that  the  plaintiff,  who 
sues  as  aforesaid,  recover  against  the  defendant  the  said  sum  of 
$  200,  one  moiety  thereof  for  the  commonwealth,  and  the  other 
moiety  for  his  own  use,  and  also  that  the  plaintiff  recover  against 
the  defendant  his  costs  &c. mercy  &c. 

52.    Verdict  and  judgment  in  debt  qui  tarn,  for  plaintiff  as  to  part, 
and  for  defendant  as  to  residue.- 

that  the  defendant  doth  owe  $  180,  parcel  of  the  debt  in 


the  declaration  mentioned,  in  manner  and  form  as  the  plaintiff 
hath  complained,  and  that  the  defendant  doth  not  owe  the  resi- 
due of  the  said  debt,  as  in  pleading  he  hath  alleged  :  There- 
fore it  is  considered  by  the  court  that  the  plaintiff,  who  sues  as 
aforesaid,  recover  against  the  defendant  the  said  sum  of  $  180, 
one  moiety  thereof  for  the  commonwealth,  and  the  other  moiety 
for  his  own  use,  and  also  that  he  recover  against  the  defendant 

his  costs  &c. mercy  &c.    And  as  to  the  residue  of  the  said 

supposed  debt,  that  the  plaintiff,  for  his  false  clamour,  be  in 
mercy  &c. 


Verdict  and  judgment.  139 

53.   Verdict  and  judgment  for  overseers  of  poor,  in  debt  on  a  penal 

law. 

that  the  defendant  doth  owe  to  the  plaintiffs  the  debt  in 


the  declaration  mentioned,  in  manner  and  form  as  the  plaintiffs 
have  complained :  Therefore  it  is  considered  by  the  court  that 
the  plaintiffs  recover  against  the  defendant  their  debt  aforesaid, 
amounting  to  $  33.33  cents,  to  be  applied  to  the  use  of  the  poor 
of  the  said  county,  and  their  costs  &c. mercy  &c. 

54.  Judgment  for  plaintiff  in  debt  on  simple  contract  or  single  bill. 
1  Rob.  Prac.  391,  2. 

{After  a  verdict  finding  for  the  plaintiff  the  debt  and  interest  in  the 
declaration  mentioned,  for  which  see  No.  15  and  16.)  Therefore  it 
is  considered  by  the  court  that  the  plaintiff  recover  against  the 
defendant  $  100,  with  interest  thereon  to  be  computed  after  the 

rate  of  six  per  centum  per  annum   from  the day  of — • — 

till  payment,  the  debt  and  interest  aforesaid,  and  his  costs  by 
him  about  his  suit  in  this  behalf  expended.  And  the  said  de- 
fendant in  mercy  &c. 

{In  an  action  upon  a  protested  negotiable  note,  after  a  verdict  find- 
ing for  the  plaintiff  the  principal,  interest  and  charges  of  protest  in 
the  declaration  mentioned,  and  assessing  nominal  damages  for  the  de- 
tention of  such  principal,  as  in  No.  15.)  Therefore  it  is  considered 
by  the  court  that  the  plaintiff  recover  against  the  defendant 
$  100,  with  interest  thereon  to  be  computed  after  the  rate  of  six 

per  centum  per  annum  from  the day  of till  payment, 

and  $  3.25  cents,  the  principal,  interest  and  charges  of  protest 
aforesaid,  together  with  his  damages  assessed  as  aforesaid,  and 
his  costs  &c.  (as  before.) 

{If  the  interest  be  not  demanded  in  the  declaration,  and  the  jury 
find  for  the  plaintiff  the  debt  in  the  declaration  mentioned,  with  in- 
terest from  a  stated  time,  as  in  No.  15  or  16.)  Therefore  it  is  con- 
sidered by  the  court  that  the  plaintiff  recover  against  the  de- 
fendant $  100,  the  debt  aforesaid,  with  interest  thereon  to  be 
computed  after  the  rate  of  six  per  centum  per  annum  from  the 
said day  of till  payment,  and  his  costs  &c. 

( Where  the  jury  find  for  the  plaintiff  parcel  of  the  debt  with  inte- 
rest, a.s  in  No.  15  or  16.)     Therefore  it  is  considered  by  the  court 

that  the  plaintiff  recover  against  the  defendant  the  said  $ , 

with  interest  thereon  to  be  computed  after  the  rate  of  six  per 

centum  per  annum  from  the  said day  of till  payment, 

and  his  costs  &c. 


140  Verdict  and  Judgment. 

55.  Judgment  for  plaintiff  in  debt  on  a  protested  foreign  bill  of  eX" 
change.  1  R.  C.  p.  485,  6.  <§  1.  2.  6.  Scott  v.  Hornsby,  1 
Call  46. 

oath  do  say,  that  the  defendant  doth  owe  to  the  plaintiff 

the  principal,  damages,  interest  and  charges  of  protest  in  the 
declaration  demanded  :  Therefore  it  is  considered  by  the  court 
that  the  plaintiff  recover  against  the  defendant  ,£  200  sterling, 
the  principal,  damages  and  charges  aforesaid,  with  interest  on 

£ part  thereof,  the  amount  of  the  said  principal,  to  be 

computed  after  the  rate  of  six  per  centum  per  annum  from  the 

day  of till  payment,  and  his  costs  &c. mercy 

&c.  But  the  said  sterling  money  may  be  discharged  in  cur- 
rent money  at  the  rale  of  —  per  centum  for  difference  of  ex- 
change. 

56.  Judgment  on  foreign  bill  of  exchange,  where  it  is  given  for  a 
debt  due  in  current  money  of  this  commonwealth,  or  for  current 
money  advanced  and  paid,  and  the  sum  in  current  money  that  was 
paid  or  allowed  for  the  same  is  not  expressed  in  such  bill.  1  R. 
C.  p.  485.  ^  4.     Proudft  v.  Murray,  1  Call  394. 

After  recording  the  verdict,  proceed  as  follows :  Whereupon,  in- 
asmuch as  it  appears  by  the  description  in  the  declaration,  of 
the  foreign  bill  of  exchange  therein  mentioned,  that  the  same 
was  given  for  current  money  advanced  and  paid  therefor,  and 
the  sum  in  current  money  that  was  paid  or  allowed  for  the 
same  is  not  mentioned,  the  sum  that  is  expressed  in  the  said  bill 
is  therefore  held  and  taken  as  current  money.  And  it  is  accord- 
ingly considered  that  the  plaintiff  recover  against  the  defendant 
£  200  current  money,  for  the  principal,  damages  and  charges 

aforesaid,  with  interest  on  £ part  thereof,  the  amount  of 

the  said  principal,  to  be  computed  &c.  from  &c.  till  payment, 
and  his  costs  &c. mercy  &c. 

57.  Judgment  for  plaintiff  in  debt  on  penal  obligation  for  payment 
of  money.  1  Rob.  Prac.  392.  17.  citing  Heath  S{c.  v.  Blalcer 
&fc.  2  Va.  Cas.  215. 

After  such  verdict  as  in  No.  12. — Therefore  it  is  considered  by 
the  court  that  the  plaintiff  recover  against  the  defendant  $200 
the  debt  in  the  declaration  demanded,  and  his  costs  by  him 
about  his  suit  in  this  behalf  expended.  And  the  said  defendant 
in  mercy  &c.  But  this  judgment  is  to  be  discharged  by  the 
payment  of  $  100,  with  interest  thereon  to  be  computed   after 

the  rate  of  six  per  centum  per  annum  from  the  day  of 

till  payment,  and  the  costs. 


Verdict  and  judgment.  141 

Where  the  principal  and  interest  exceed  the  penalty,  and  the  jury 
assess  damages  for  the  detention  of  the  debt,  as  in  No.  13. — There- 
fore it  is  considered  by  the  court  that  the  plaintiff  recover  against 
the  defendant  $  74.66  cents  the  debt  in  the  declaration  demand- 
ed, together  with  his  damages  assessed  as  aforesaid,  and  his 
costs  by  him  about  his  suit  in  this  behalf  expended.  And  the 
said  defendant  in  mercy  &c.  But  this  judgment  is  to  be  dis- 
charged by  the  payment  of  $  37.33  cents,  with  interest  thereon 
to  be  computed  after  the  rate  of  six  per  centum  per  annum  from 
this  day  till  payment,  and  the  damages  aforesaid,  and  the  costs. 

58.  Judgment  for  plaintiff  in  debt  on  penal  obligation  for  sterling 

money.     1  Rob.  Prac.  393,  4. 

Therefore  it  is  considered  by  the  court  that  the  plaintiff  re- 
cover against  the  defendant  £  163.  3.  2.  sterling,  the  debt  in  the 

declaration  demanded,  and  his  costs  &c. mercy  &c.     But 

this  judgment  is  to  be  discharged  by  the  payment  of  £  131. 11.  7. 
like  money,  with  interest  thereon  &c.  to  be  computed  &c.  till 
payment,  and  the  costs.  And  it  is  to  be  discharged  in  cur- 
rent money,  at  the  rate  of  33^  per  centum  for  difference  of  ex- 
change.* 

*  The  entry  of  the  judgment  for  sterling  money  which  maybe  discharged  in 

current  money  at per  cent,  exchange,  strictly  pursues  the  law  and  uniform 

practice,  leaving  the  defendants  the  alternative  of  paying  in  either  money.  Pen- 
dleton, president,  in  Scott  v.  Hornsby,  1  Call  46. 

59.  Judgment  for  plaintiff  in  debt  on  bond  with  collateral  condition. 
1  Rob.  Prac.  394,  and  p.  17.  where  Newell  v.  Wood,  1  Munf. 
666  is  cited. 

After  recording  the  verdict,  as  in  No.  17. — Therefore  it  is  con- 
sidered by  the  court  that  the  plaintiff  recover  against  the  defen- 
dant $  1000  the  debt  in  the  declaration  demanded,  and  his  costs 

&c.  mercy  &c.     But  this  judgment  is  to  be  discharged 

by  the  payment  of  the  damages  assessed  as  aforesaid,  with  in- 
terest thereon  to  be  computed  after  the  rate  of  six  per  centum 

per  annum  from  the  said day  of till  payment,  and 

the  costs. 

60.  Judgment  for  plaintiff  in  debt  on  collateral  bond,  which  remains 

as  a  security  for  future  damages.     1  Rob.  Prac.  394,  5. 

If  the  recovery  as  to  future  injuries  be  not  confined  to  the  first  relator, 
then,  after  the  preceding  entry,  add  these  words :  and  such  other  da- 
mages as  may  be  hereafter  assessed,  upon  a  writ  or  writs  of 


142  Verdict  and  judgment. 

scire  facias  being  sued  out,  and  new  breaches  assigned  by  the 
said  C.  C.  or  by  any  other  person  or  persons  injured. 

If  the  person  for  whom  the  first  damages  are  assessed  is  the  only  per- 
son for  whom  there  can  be  a  recovery  on  the  bond,  omit  the  words  in 
italics. 

61.  Judgment  for  plaintiff  in  debt  on  collateral  bond,  which  remains 
as  a  security  for  future  instalments.     1  Rob.  Prac.  394. 

Therefore  &c.  (as  in  No.  59.)  But  this  judgment  is  to  be  dis- 
charged by  the  payment  of  $ ,  with  interest  thereon  to 

be  computed  after  the  rate  of  six  per  centum  per  annum  from 

the day  of till  payment,  and  the  costs,  and  such 

further  sums  as  may  be  hereafter  found  to  be  due,  upon  a  writ 
or  writs  of  scire  facias  being  sued  out,  and  new  breaches  as- 
signed. 

62.  Judgment  in  debt  on  collateral  bond,  where  the  jury  find  under 
$  6.66  cts.  1  Rob.  Prac.  395.  Harris  v.  Duncan,  2  Ad.  &  E. 
158.  29  Eng.  Com.  Law  Rep.  55. 

After  recording  the  verdict — And  the  court  being  satisfied  that- 
the  action  was  neither  frivolous  nor  vexatious,  it  is  therefore  con- 
sidered that  the  plaintiff  recover  &c.  (as  in  No.  59.) 

( Or,  if  the  court  shall  not  be  satisfied  and  enter  upon  the  record 
that  the  action  was  neither  frivolous  nor  vexatious :)  Therefore  it  is 
considered  by  the  court  that  the  plaintiff  recover  against  the  de- 
fendant $ the  debt  in  the  declaration  demanded,  and 

that  he  recover,  for  his  costs  by  him  about  his  suit  expended,  as 
much  as  the  sum  so  found,  but  no  more.  And  this  judgment  is 
to  be  discharged  by  the  defendant's  paying  the  sum  so  found, 
without  more  costs  than  that  sum. 

63.  Jiidgment  for  plaintiff  in  detinue.     1  Rob.  Prac.  395. 

After  recording  the  verdict  as  in  No.  25. — Therefore  it  is  consi- 
dered by  the  court  that  the  plaintiff  recover  against  the  defen- 
dant the  slaves  aforesaid,  of  the  values  aforesaid,  if  they  may 
be  had,  but  if  not,  then  the  values  aforesaid  of  them,  or  such  of 
them  respectively  as  may  not  be  had,  together  with  his  damages 
assessed  as  aforesaid,  and  his  costs  by  him  about  his  suit  in  this 
behalf  expended.     And  the  said  defendant  in  mercy  &c. 


Verdict  and  judgment*  143 

64.  Judgment  for  plaintiff  in  covenant  or  assumpsit.    1  Rob.  Prac. 

395. 

After  recording  the  verdict  as  in  No.  18  or  No.  19. — Therefore 
it  is  considered  by  the  court  that  the  plaintiff  recover  against  the 
defendant  his  damages  assessed  as  aforesaid,  with  interest  there- 
on to  be  computed  after  the  rate  of  six  per  centum  per  annum 

from  the  said day  of till  payment,  and  his  costs 

&c. mercy  &c. 

65.  Judgment  for  plaintiff  in  an  action  for  a  tort.     1  Rob.  Prac. 

395. 

After  recording  the  verdict  as  in  No.  26. — Therefore  it  is  consi- 
dered by  the  court  that  the  plaintiff  recover  against  the  defen- 
dant his  damages  assessed  as  aforesaid,  and  his  costs  &c.  And 
the  said  defendant  may  be  taken  &c. 

66.  Jitdgment  in  action  of  cLssault  and  battery,  or  slander,  where  less 
than  S  16.66  is  found  in  a  circuit  court,  or  less  than  $6.66  in 
a  county  or  corporation  court,     1  Rob.  Prac.  396. 

Therefore  it  is  considered  that  the  plaintiff  recover  against 
the  defendant  his  damages  assessed  as  aforesaid,  but  that  he 
shall  not  recover  any  costs. 

67.  Judgment  where  the  jury  find  under  $  6.66  in  trespass,  case,  or 
covenant.  1  Rob.  Prac.  396.  Harris  v.  Duncan,  2  Ad.  &  E. 
158.    29  Eng.  Com.  Law  Rep.  55. 

Therefore  it  is  considered  by  the  court  that  the  plaintiff  reco- 
ver against  the  defendant  his  damages  found  aB  aforesaid,  and 
that  he  recover,  for  his  costs  by  him  about  his  suit  expended,  as 
much  as  the  sum  so  found,  but  no  more. 

Or, 

In  trespass  quare  claiisuin  fregit — And  the  Court  being  satisfied 
that  the  freehold  title  or  interest  of  the  land  mentioned  in  the 
plaintiff's  declaration  was  or  might  have  been  in  question  (or, 
that  the  trespass  was  wilful  or  malicious)  it  is  therefore  consi- 
dered that  the  plaintiff  recover  against  the  defendant  his  da- 
mages assessed  as  aforesaid,  and  his  costs  by  him  about  his  suit 
in  this  behalf  expended. 

In  other  actions  of  trespass — And  the  court  being  satisfied  that 
the  trespass  was  wilful  or  malicious,  it  is  therefore  considered 
&c.  (as  last.) 


144  Verdict  and  judgment. 

In  case  or  covenant — And  the  court  being  satisBed  that  the  ac- 
tion was  neither  frivolous  nor  vexatious,  it  is  therefore  consider-  - 
ed  &c.  (as  last.) 

68.  Judgment  de  bonis  in  action  against  personal  representative. 
1  Rob.  Prac.  396. 

Before  the  words  "  And  the  said  defendant  in  mercy  &c."  in- 
sert these  words  :  "  to  be  levied  of  the  goods  and  chattels  of  the 
decedent  in  the  hands  of  the  defendant  to  be  administered." 

69.  Judgment  de  bonis  in  action  against  personal  representative,  with 
a  special  agreement  to  prevent  his  being  charged  beyond  the  assets. 

After  the  judgment  as  in  the  last  form,  add  the  following : 
Memorandum.  It  is  ordered  to  be  entered  of  record,  that 
before  the  trial  of  the  last  cause,  the  plaintiffs  assented  to  what 
follows';  that  is  to  say,  the  said  plaintiffs  agree  that  their  judg- 
ment is  not  to  be  paid  until  there  shall  be  a  sufficiency  of  assets 
in  the  hands  of  the  defendant,  after  paying  all  debts  of  his  de- 
cedent of  superior  dignity,  of  which  he  may  have  notice  before 
the  expiration  of  nine  months*  from  the  date  of  the  defendant's 
qualification  as  administrator,  and  after  paying  all  judgments 
heretofore  obtained  against  the  said  defendant  for  debts  of  equal 
dignity,  and  after  retaining  any  debt  due  from  the  decedent  to 
the  defendant  of  equal  dignity,  and  paying  likewise  any  debt 
for  which  the  defendant  may  be  surety  for  his  intestate,  that  is 
so  evidenced  as  to  be  of  equal  dignity.  And  the  said  plaintiffs 
furthermore  agree  that  this  judgment  is  not  to  operate  as  any 
admission  or  evidence  of  assets  in  the  hands  of  the  defendant. 

*  The  nine  months  had  not  expired  when  this  entry  was  made. 

70.  Judgment  in  action  against  personal  representative,  to  be  levied 
for  part  de  bonis,  and  for  the  residue  when  assets.     1  Rob.  Prac. 

397. 

to  be  levied,  as  to  $ part  thereof,  of  the  goods 

and  chattels  of  the  decedent  remaining  in  the  hands  of  the  de- 
fendant to  be  administered,  and  to  be  levied,  as  to  the  residue 
thereof,  of  the  goods  and  chattels  which  were  of  the  decedent 
at  the  time  of  his  death,  and  which,  since  the  said  '  plea 

pleaded  by  the  defendant,  have  come,  or  which  shall  hereafter 
come,  to  the  hands  of  the  said  defendant  to  be  administered. 


Verdict  and  jvdgment.  145 

71.  Judgment  in  action  against  personal  representative^  to  be  levied 
for  the  whole  when  a3sets.     1  Rob.  Prac.  397. 


to  be  levied  of  the  goods  and  chattels  which  were  of  the 

decedent  at  the  time  of  his  death,  and  which,  since  the  said 

plea  pleaded  by  the  defendant,  have  come,  or  which  shall  here- 
after come,  to  the  hands  of  the  said  defendant  to  be  adminis- 
tered. 

72.  Judgment  for  costs  of  personal  representative,  where  the  plaintiff 
has  judgment  against  him  when  assets.     1  Rob.  Prac.  398. 

(If  the  administrator  pleaded  the  single  plea  of  fully  adminis- 
tered, on  which  the  plaintiff  took  issue,  and  the  issue  has  been 
found  for  the  defendant,  then,  after  the  judgment  for  plaintiff 
quando  acciderint,  as  in  the  last  form,  proceed  as  follows  :)  "  And 
it  is  further  considered  that  the  defendant  recover  against  the 
plaintiff  his  costs  by  him  about  his  defence  expended." 

(If  the  administrator  pleaded  a  plea  denying  the  debt,  and 
also  fully  administered,  and  issue  being  taken  on  both  pleas,  the 
first  is  found  for  the  plaintiff  and  the  second  for  the  defendant, 
then,  after  the  judgment  for  plaintiff  quando  acciderint,  the  entry 
will  be  thus  :)  "  And  it  is  further  considered  that  the  defendant 
recover  against  the  plaintiff  his  separate  costs  by  him  expended 
about  his  defence  on  the  second  plea  pleaded  by  the  said  defen- 
dant." 

73.  Judgment  against  a  personal  representative  in  detinue.  Allen's 
ex^or  V.  Harlan's  admW,  6  Leigh  42.  CatletCs  ex^or  v.  Russell, 
Id.  344.   Greenleeh  adrrCr  v.  Bailey,  9  Leigh  526. 

As  in  No.  63,  except  that,  before  the  words  "  And  the  said  de- 
fendant in  mercy  &c."  will  be  inserted,  **  to  be  levied,  as  to  the 
damages  and  costs  aforesaid,  of  the  goods  and  chattels  of  the 
decedent  in  the  hands  of  the  defendant  to  be  administered." 

74.  In  action  on  contract  against  two  defendants,  one  of  whom  is  dis- 
charged, judgment  against  the  other.  1  Rob.  Prac.  400.  Sess. 
Acts  1838,  p.  75.  ch.  96.  §  2.  Id.  p.  73.  ch.  95.  '^  1. 

oath  do  say,  that  on  the  issue  joined  between  the  plain- 


tiff and  the  defendant  B.  they  find  for  the  said  defendant,  but 
that  they  find  for  the  plaintiff  upon  the  issue  joined  between 
him  and  the  defendant  C.  and  they  assess  the  plaintiff's  da- 
mages by  occasion  of  the  nonperformance  of  the  promises  and 

assumptions*  in  the  declaration  mentioned,  to  $ ,  and  allow 

19 


146  Verdict  and  judgment. 

on  the  said  damages  interest  from  the day  of till 

paid :  Therefore  it  is  considered  by  the  court  that  the  plaintiff 
recover  against  the  defendant  C.  his  damages  assessed  as  afore- 
said, with  interest  thereon  to  be  computed  after  the  rate  of  six 
per  centum  per  annual  from  the day  of till  pay- 
ment, and  his  costs  &c. mercy  &c.  And  it  is  further  con- 
sidered that  the  plaintiff  take  nothing  by  his  bill  as  against  the 
defendant  B.  but  that  he  be  in  mercy  &c.  and  that  the  said  de- 
fendant B.  go  thereof  without  day,  and  recover  against  the  plain- 
tiff his  costs  by  him  about  his  defence  expended. 

*  If  the  action  be  not  assumpsit,  the  entry  must  of  course  be  adapted 
to  the  nature  of  the  case. 

75.  Jtidgment  in  action  of  trespass,  assault  or  false  impriso7iment 
against  several,  one  of  whom  is  found  guilty  and  another  not.  1 
Rob.  Prac.  403.  Murray  v.  Nichols  ^r.  6  Bingh.  530.  19  Eng. 
Com.  Law  Rep.  159. 

oath  do  say,  that  the  defendant  B.  is  guilty  as  the  plain- 


tiff against  him  complained,  and  they  assess  the  plaintiff's  da- 
mages by  reason  of  the  matters  in  the  declaration  mentioned,  to 

$ .     And  farther  the  said  jury  upon  their  oath  do  say,  that 

the  defendant  C.  is  not  guilty  as  in  pleading  he  hath  alleged : 
Therefore  it  is  considered  by  the  court  that  the  plaintiff  recover 
against  the  said  defendant  B.  his  damages  assessed  as  aforesaid, 
and  his  costs  &c.  And  it  is  further  considered  that  the  plain- 
tiff take  nothing  by  his  bill  as  against  the  defendant  C.  but  that 
he  be  in  mercy  &c.  and  that  the  said  defendant  go  thereof  with- 
out day,  and  recover  against  the  plaintiff  his  costs  by  him  about 
his  defence  expended. 

Or — And  it  is  farther  considered  that  the  plaintiff  take  no- 
thing by  his  bill  as  against  the  defendant  C.  and  that  the  said 
defendant  go  thereof  without  day,  but  without  recovering  the 
costs  of  his  defence,  the  court  being  satisfied  that  there  was  rea- 
sonable cause  for  making  him  a  defendant  to  this  action. 

76.  Judgment  in  circuit  court  for  plaintiff,  where  verdict  is  for  less 
than  $  50.  in  consequence  of  a  set-off.  1  Rob.  Prac.  18.  citing 
Ferguson  v.  Highley,  2  Va.  Cas.  255. 

oath  do  say,  that  on  the  issue  joined  they  find  for  the 


plaintiff  only  the  sum  of  $  47.34  cents  ;  but  the  said  jurors  upon 
their  oath  do  further  say,  that  the  finding  for  the  plaintiff  less 
than  fifty  dollars  is  in  consequence  of  evidence  given  at  the  trial, 
of  a  set-off:  Therefore  it  is  considered  by  the  court  that  the 


Verdict  and  judgment.  147 

plaintiff  recover  against  the  defendant  the  said  $  47.34  cents, 
and  his  costs  &c. mercy  &c. 

77.  Judgment  in  circuit  court  for  defendant  in  assumpsit ,  where  ver- 
dict is  for  less  than  $  50.  1  Rob.  Prac.  18.  citing  Maitland  v. 
M'Dearman,  1  Va.  Cas.  131. 

oath  do  say,  that  on  the  issue  joined  they  find  for  the 


plaintiff,  and  they  assess  the  plaintiff's  damages  by  occasion  of 
the  nonperformance  of  the  promises  and  assumptions  in  the  de- 
claration mentioned,  to  $49.  And  it  not  appearing  that  the 
plaintiff's  demand  was  reduced  below  the  sum  of  $  50.  by  any 
set-off  against  the  same,  and  the  action  not  being  one  in  which 
the  damages  were  in  their  nature  uncertain  and  unknown  until 
ascertained  by  the  jury,  it  seems  to  the  court  that  judgment 
ought  to  be  stayed  on  the  said  verdict :  Therefore  it  is  consi- 
dered by  the  court  that  the  plaintiff  take  nothing  by  his  bill,  but 
be  in  mercy  &c.  and  that  the  defendant  go  thereof  without  day, 
and  recover  against  the  said  plaintiff  his  costs  by  him  about  his 
defence  in  this  behalf  expended. 

78.  Judgment  in  circuit  court  for  plaintiff  upon  verdict  for  less  than 
$  50.  in  assumpsit  on  special  contract,  where  damages  are  in  their 
nature  uncertain.  1  Rob.  Prac.  18.  citing  Pendred's  admWs  v. 
Pendred,  2  Va.  Cas.  93. 

After  recording  the  verdict  as  in  la^t  form — Whereupon,  the 
court  being  of  opinion  that  in  this  action  the  damages  sustained 
by  the  plaintiff  by  the  breach  of  the  contract  in  the  declaration 
mentioned  were  in  their  nature  altogether  uncertain,  and  of  ne- 
cessity unknown  until  ascertained  by  the  jury,  it  seems  to  the 
court  that  judgment  on  the  verdict  ought  not  to  be  stayed : 
Therefore  it  is  considered  by  the  court  that  the  plaintiff  recover 
against  the  defendant  his  damages  assessed  as  aforesaid,  and 
his  costs  &c. mercy  &c. 

79.  Judgment  in  circuit  court  for  defendant  in  debt  on  single  hill 
or  promissory  note,  where  verdict  is  for  less  than  $  50.  in  conse- 
quence of  payments.  1  Rob.  Prac.  18.  citing  Larowe  v.  Har- 
ding's adm'r,  2  Va.  Cas.  203. 

oath  do  say,  that  on  the  issue  joined  they  find  for  the 


plaintiff  only  $  40.  parcel  of  the  debt  in  the  declaration  de- 
manded ;  and  the  said  jurors  upon  their  oath  do  farther  say, 
that  the  balance  of  the  said  debt  so  demanded  by  the  plaintiff 
was  paid  to  the  said  plaintiff  before  the  commencement  of  this 


148  Veidict  and  judgment, 

action  :  Whereupon  it  seems  to  the  court,  that  judgment  cannot 
be  given  by  this  court  for  the  plaintiff  on  the  said  verdict.  And 
it  is  therefore  considered  that  the  said  plaintiff  take  nothing  by 
his  bill,  but  be  in  mercy  &c.  and  that  the  defendant  go  thereof 
without  day,  and  recover  against  the  said  plaintiff  his  costs  by 
him  about  his  defence  in  this  behalf  expended. 

80.   Verdict  shewing  that  a  justice  of  the  peace  had  cognizance, 
plaintiff  nonsuited.     1  Rob.  Prac.  3. 

oath  do  say,  that  on  the  issue  joined  they  find  for  the 

plaintiff,  and  they  assess  the  plaintiff's  damages  by  occasion  of 
the  nonperformance  of  the  promises  and  assumptions  in  the  de- 
claration mentioned,  to  $  10.  Whereupon,  inasmuch  as  it  ap- 
pears by  the  said  verdict  that  a  ju'Stice  of  the  peace  had  cogni- 
zance in  this  case,  it  is  ordered  that  the  plaintiff  be  nonsuited, 
and  pay  to  the  defendant  &c.  (as  ante,  p.  96.  No.  4.) 

81.  Judgment  upon  verdict  found  for  defendant  on  a  plea  in  abate- 

ment.     1  Rob.  Prac.  389.  403,  4. 

Therefore  it  is  considered  by  the  court  that  the  plaintiff's  writ 
be  quashed,  and  that  the  defendant  go  thereof  without  day,  and 
recover  against  the  plaintiff  his  costs  by  him  about  his  defence 
expended. 

82.  Judgment  upon  verdict  found  for  defendant  on  a  plea  in  bar. 
1  Rob.  Prac.  389.  403,  4.  Price  v.  Harris  ^tr.  10  BingH.  667. 
25  Eng.  Com.  Law  Rep.  242. 

Therefore  it  is  considered  by  the  court  that  the  plaintiff  take 
nothing  by  his  bill,  but  for  his  false  clamour  be  in  mercy  &c. 
and  that  the  defendant  go  thereof  without  day  &c.  (as  last.) 

83.  Judgment  for  defendant's  costs,  where  plaintiff  is  an  executor  or 

administrator.     1  Rob.  Prac.  389.  403,  4. 

After  entering  judgment  as  in  last  form,  add :  to  be  levied  of  the 
goods  and  chattels  of  the  testator  (or,  intestate)  in  the  hands  of 
the  plaintiff  to  be  administered. 

If  the  court  shall  be  of  opinion  that  the  executor  or  administrator, 
in  the  prudent  discharge  of  his  official  duty,  ought  not  to  have 
brought  the  action,  add  further — if  so  much  thereof  be  found,  if 
not,  then  of  his  own  proper  goods  and  chattels. 


Verdict  and  judgment.  149 

84.  Judgment  against  a  relator  after  verdict  for  defendant. 

Therefore  it  is  considered  by  the  court  that  the  plaintiffs  take 
nothing  by  their  bill,  and  that  the  defendants  go  thereof  with- 
out day,  and  recover  against  TV,  D.  W.  the  relator  in  this  suit, 
their  costs  by  them  about  their  defence  expended. 

85.  Judgment  upon  demurrer  to  evidence.     1  Rob.  Prac.  404,  5,  6. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  defendant's  demurrer  to  the  plaintiff's  evidence  being  ar- 
gued, it  seems  to  the  court  that  the  matter  shewn  in  evidence  to 
the  jury  is  suflBcient  in  law  {or,  is  not  sufficient  in  law)  to  main- 
tain the  issue  on  the  part  of  the  plaintiff  {or,  defendant) :  There- 
fore it  is  considered  by  the  court 

{If  for  the  defendant)  that  the  plaintiff  take  nothing  by  his  bill, 
but  &c.  (as  in  other  judgments  for  defendant.     See  No.  82.) 

{If  for  the  plaintiff,  and,  the  action  sounding  in  damages,  the  Jury 
assessed  them)  that  the  plaintiff  recover  against  the  defendant 
$  150.  the  damages  by  the  jury  in  their  verdict  assessed,  with 
interest  thereon  to  be  computed  after  the  rate  of  six  per  centum 

per  annum  from  the day  of till  payment,  and  also 

his  costs  by  him  &c. mercy  &c. 

{If  damages  were  assessed,  and  the  action  is  on  a  collateral  bond) 

that  the  plaintiff  recover  againgt  the  defendant  $ the  debt 

in  the  declaration  demanded,  and  his  costs  &c. mercy  &c. 

But  this  judgment  is  to  be  discharged  by  the  payment  of  $ — ^ 
the  damages  by  the  jury  in  their  verdict  assessed,  with  interest 
&c.  and  the  costs  aforesaid. 

If  the  case  be  one  in  which,  if  the  defendant  had  never  pleaded, 
final  judgment  would  have  been  given  by  default  without  the  interpo- 
sition of  a  jury,  such  final  judgment  will  of  course  be  entered. 

If  the  case  be  one  in  which  final  judgment  could  not  have  been 
given  by  default  without  a  writ  of  enquiry,  and  the  former  jury  omit- 
ted to  assess  damages  conditionally,  such  writ  of  enquiry  should  now 
be  awarded,  thus :  that  the  plaintiff  recover  against  the  defendant 
what  damages  he  ought  to  recover,  and  that  his  said  damages 
be  ascertained  by  a  jury.  Whereupon  a  jury,  to  wit,  A.  B. 
&c.  being  sworn  diligently  to  enquire  of  damages  in  this  suit, 
upon  their  oath  &c.  (as  in  No.  1.)  Therefore  it  is  considered 
by  the  court  that  the  plaintiff  recover  &c. 


150  Verdict  and  judgment. 

86.  Judgment  upon  special  verdict,  points  reserved,  or  case  agreed. 
1  Rob.  Prac.  406. 

This  day  came  the  parlies  by  their  attorneys,  and  thereupon 
the  matters  of  law  arising  upon  the  special  verdict*  in  this  cause 
being  argued,  it  seems  to  the  court  that  the  law  is  for  the  plain- 
tiff (or,  defendant.)     Therefore  it  is  considered  by  the  court 

{If  for  the  defendant)  that  the  plaintiff  take  nothing  by  his  bill, 
but  &c.  (as  in  other  judgments  for  defendant.     See  No.  82.) 

{If  for  the  plaintiff)  that  the  plaintiff  recover  against  the  de- 
fendant &c.  (using  such  of  the  forms  of  a  judgment  upon  de- 
murrer to  evidence  as  may  be  applicable.) 

*  Instead  of  the  words  "special  verdict,"  insert  "points  reserved"  or 
"  case  agreed,"  where  proper. 

87.  After  judgment  for  "plaintiff,  satisfaction  acknowledged  as  to  part. 

After  the  judgment,  say — Whereupon  the  plaintiff  acknowledg- 
es that  he  has  received  satisfaction  of  the  defendant  for  $ 


parcel  of  the  damages  aforesaid  :     Therefore,  as  to  so  much, 
the  said  defendant  is  acquitted  and  discharged. 

88.   The  day  after  the  judgment,  parcel  of  the  damages  released. 

The  plaintiff,  by  his  attorney,  freely  here  in  court  releases  to 

the  defendant  $ parcel  of  the  damages  yesterday  adjudged 

to  him  in  this  cause :     Therefore,  as  to  so  much,  the  said  de- 
fendant is  acquitted  and  discharged. 

89.  After  judgment  for  plaintiff,  agreement  by  him  to  allow  discounts. 
Winston  v.  Overseers  of  Poor,  4  Call  357. 

After  the  judgment,  say — And  the  plaintiff  agrees  to  allow  to  the 
defendants  all  such  discounts  against  this  judgment  as  they  shall 
make  appear  to  be  just,  before  G.  W.,  B.  C.  and  E.  F.  gent,  or 
any  two  of  them,  on  or  before  the day  of next. 

90.  Satisfaction  of  judgment  acknowledged  at  a  subsequent  teim. 

The  plaintiff,  by  his  attorney,  here  in  court  acknowledges  that 
the  defendant  has  paid  him  the  whole  amount  of  principal,  in- 
terest and  costs  recovered  by  the  judgment  rendered  in  this 
cause  on  the  seventh  day  of  June  1822,  and  that  the  said  judg- 
ment is  thereby  wholly  satisfied.  Therefore  the  defendant  from 
the  force  and  effect  of  the  said  judgment  is  forever  acquitted 
and  discharged. 


Distress  and  replevin.  151 


CHAPTER  XV. 

DISTRESS    AND    REPLEVIN. 


1.  Affidavit  to  authorize  a  vxirrant  of  distress.     Sess.  Acts  1834-5, 

p.  43,  4.  ch.  61.  §  1. 

H.  county,  to  wit : 

This  day  A.  B.  personally  appeared  before  me,  a  justice  of 
the  peace  for  the  said  county,  and   made  oath  that  the  sum  of 

S is  in  arrear  to  him  from  C.  D.  for  one  half  year's  rent  of 

a  tenement  in  the  said  county,  reserved  upon  contract,  and  that 
he  verily  believes  no  part  thereof  hath  been  paid.  Given  under 
my  hand  this day  of . 

2.  Warrant  of  distress.     Sess.  Acts  1834-5,  p.  43,  4.  ch.  61.  <^  1. 

To  any  sheriff,  constable,  or  other  proper  officer  of  the  county 

of  H. 
Whereas  A.  B.  has  this  day  made  oath  before  me,  a  justice  of 

the  peace  for  the  said  county,  that  the  sum  of  $ is  in  arrear 

to  him  from  C.  D.  for  one  half  year's  rent  of  a  tenement  in  the 
said  county,  reserved  upon  contract,  and  that  he  verily  believes 
no  part  thereof  hath  been  paid  :  Therefore,  upon  the  authority 
of  the  said  affidavit  made  as  aforesaid,  and  upon  the  applica- 
tion of  the  said  A.  B.  I  the  said  justice  do  hereby  authorize  you, 
or  any  of  you,  to  enter  into  or  upon  the  said  premises,  and  there 

make  a  distress  of  goods  and  chattels  for  the  said  sum  of  $ 

due  to  the  said  A.  B.  for  the  said  half  year's  rent.*  Given  un- 
der my  hand  this day  of . 

*  Clause  to  be  inserted  where  property  has  been  removed  from  the  pre- 
mises. 1  R.  C.  1819,  p.  450.  '^  17.  18.  Sess.  Acts  1822-3,  p. 
29.  ch.  29.  <§  2. 

And  I  the  said  justice  do  empower  you  to  distrain  any  pro- 
perty which  the  said  C.  D.  may  have  fraudulently  conveyed 
away  or  permitted  to  be  carried  from  the  premises,  at  any  time 
within  thirty  days  after  the  same  shall  have  been  removed  from 
the  tenement :  provided  such  property  shall  not  have  been  sold 
for  a  bona  fide  consideration  before  it  shall  have  been  distrained. 


152  Distress  and  replevin. 

3.  Bond  given  by  tenant  upon  suing  out  writ  of  replevin.     1  Rob. 

Prac.  409. 

Know  all  men  by  these  presents  that  we  C.  D.  and  E.  F.  are 

held  and  firnrily  bound  unto  A.  B.  in  the  sum  of  $ ,  to  be 

paid  to  the  said  A.  B.  his  executors,  administrators  or  assigns  ; 
for  the  payment  whereof  we  bind  ourselves  jointly  and  several- 
ly, and  each  of  us  binds  his  heirs,  executors  and  administrators. 
Sealed  with  our  seals  and  dated  this day  of . 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  following  goods  and  chattels,  to  wit,  (here  specify  the  pro- 
perty) have  been  distrained  in  the  county  of  H.  to  satisfy  A.  B. 

the  sum  of  $ said  to  be  due  to  him  from  C.  D.  for  rent,  and 

the  said  C.  D.  has  applied  to  the  clerk  of  the  circuit  superior 
court  of  law  and  chancery  for  the  said  county  of  H.  for  a  writ 
of  replevin  to  replevy  the  said  goods  and  chattels :  Now  if  the 
said  C  D.  shall  well  and  truly  perform  and  satisfy  the  judgment 
of  the  said  court  in  the  said  suit,  in  case  he  shall  be  cast  there- 
in, then  the  above  obligation  is  to  be  void,  otherwise  it  is  to  re- 
main in  full  force. 

4.    Writ  of  replevin  by  the  tenant.     1  Rob.  Prac.  408,  9,  10,  11. 

The  commonwealth  of  Virginia  to  the  sheriff  of  H.  county, 
greeting :  Whereas  the  following  goods  and  chattels  to  wit, 
(here  specify  the  property)  have  been  distrained  in  our  said 

county,  to  satisfy  A.  B.  the  sum  of  $ said  to  be  due  to  hira 

from  C.  D.  for  rent,  and  the  said  C.  D.  alleging  that  the  said 
goods  and  chattels  have  been  wrongfully  taken,  and  are  unjustly 
detained,  has  applied  to  the  clerk  of  our  circuit  superior  court  of 
law  and  chancery  for  the  said  county  of  H.  for  a  writ  of  reple- 
vin to  replevy  the  same,  and  has  entered  into  bond  with  suffi- 
cient sureties,  in  the  clerk's  office  of  our  said  court,  in  the  pe- 
nalty of  at  least  double  the  value  of  the  rent  distrained  for  and 
costs  of  suit,  to  perform  and  satisfy  the  judgment  of  our  said 
court  in  his  suit,  in  case  he  shall  be  cast  therein  :  Therefore  we 
command  you  that  without  delay  you  replevy  and  cause  to  be 
delivered  unto  the  said  C.  D.  the  goods  and  chattels  aforesaid, 
and  that  you  summon  the  said  A.  B.  to  appear  &c.  to  answer 
the  said  C.  D.  of  the  wrongfully  taking  and  unjustly  detaining 
his  said  goods  and  chattels,  to  the  damage  of  the  said  C.  D. 

% .     And  have  then  there  this   writ,  and  then  and  there 

make  known  in  what  manner  you  have  executed  the  same. 
Witness  &c. 


Distress  and  replevin.  153 

6.   Writ  of  replevin  where  the  property  distrained  is  claimed  by  any 
other  than  the  tenant.     1  Rob.  Prac.  408,  9,  10,  11. 

The  commonwealth  &c.  Whereas  the  following  goods  and 
chattels,  to  wit,  (here  specify  the  property)  have  been  distrained 

in  our  said  county,  to  satisfy  A.  B.  the  sum  of  $ said  to 

be  due  to  him  from  C.  D.  for  rent,  and  E.  F.  has  suggested  that 
the  said  goods  and  chattels  so  distrained  are  his  property,  and 
not  the  property  of  the  said  C.  D.  nor  held  in  trust  for  the  use 
of  the  said  C.  D.  in  any  manner  whatsoever,  and  that  the  same, 
in  his  opinion,  are  not  liable  to  such  distress :  Therefore  we 
command  you,  that  upon  the  execution  of  a  bond  by  the  said 
E.  F.  with  one  or  more  sufficient  sureties,  in  double  the  amount 
of  the  value  of  the  said  property,  to  be  ascertained  by  two  dis- 
interested freeholders  to  be  sworn  before  some  justice  of  the 
peace,  and  conditioned  to  perform  and  satisfy  the  judgment  of 
the  court  in  this  suit,  in  case  he  shall  be  cast  therein,  you  do 
immediately  thereafter,  without  delay,  replevy  and  cause  to  be 
delivered  unto  the  said  E.  F.  the  goods  and  chattels  aforesaid, 
and  do  also  summon  the  said  A.  B.  to  appear  &c.  to  answer  the 
said  E.  F.  of  &c.  (as  last.) 

6.  Certificate  of  justice  that  he  sivore  two  freeholders  to  value  the 

property  distrained.     1  Rob.  Prac.  408,  9. 

H.  county,  to  wit : 

On  this day  of in  the  year ,  G.  H.  and  J. 

K.  two  disinterested  freeholders  of  the  said  county,  were  sworn 
by  me  L.  M.  a  justice  of  the  peace  of  the  same  county,  well 
and  truly  to  ascertain,  to  the  best  of  their  judgment,  the  value 
of  the  goods  and  chattels  mentioned  in  a  writ  of  replevin,  sued 
out  of  the  circuit  superior  court  of  law  and  chancery  for  the 
said  county,  by  E.  F.  against  A.  B.     As  witness  my  hand. 

L.  M. 

7.  Appraisement  of  the  property  distrained.     1  Rob.  Prac.  408,  9. 

We  G.  H.  and  J.  K.  two  freeholders  of  the  county  of  H. 
being  duly  sworn  before  a  justice  of  the  peace,  well  and  truly 
to  ascertain,  to  the  best  of  our  judgment,  the  value  of  the  goods 
and  chattels  mentioned  in  a  writ  of  replevin,  sued  out  of  the 
circuit  superior  court  of  law  and  chancery  for  the  said  county, 
by  E.  F.  against  A.  B.,  have  viewed  the  said  goods  and  chat- 
tels, and  do  appraise  and  value  the  same  at  the  sum  of  $ . 

As  witness  our  hands  this day  of .  G.  H. 

J.  K. 
20 


154  Distress  and  replevin. 

8.  Bond  given  by  claimant  of  distrained  property  upon  suing  out 
writ  of  replevin.     1  Rob.  Prac.  408,  9. 

Know  all  men  &c.  (pursuing  the  form  of  the  obligation  in  No. 
3.)  The  condition  of  the  above  obligation  is  such,  that  whereas 
the  following  goods  and  chattels,  to  wit,  (here  specify  the  pro- 
perty) have  been  distrained  in  the  county  of  H.  to  satisfy  A.  B. 

the  sum  of  $ said  to  be  due  to  him  from  C.  1).  for  rent ; 

and  E.  F.  suggesting  that  the  said  goods  and  chattels  are  his 
property,  and  not  the  property  of  the  said  C.  D.  nor  held  in  trust 
for  the  use  of  the  said  C.  D.  in  any  manner  whatsoever,  and 
that  the  same,  in  his  opinion,  are  not  liable  to  such  distress,  has 
sued  out  of  our  circuit  superior  court  of  law  and  chancery  for 
the  said  county  of  H.  his  writ  of  replevin,  directed  to  the  sheriff 
of  the  said  county  ;  and  two  disinterested  freeholders,  sworn 
before  a  justice  of  the  peace,  have  ascertained  the  value  of  the 

said  property  to  be  $ :  Now  if  the  said  E.  F.  shall  well 

and  truly  perform  and  satisfy  the  judgment  of  the  said  court  in 
the  said  suit,  in  case  he  shall  be  cast  therein,  then  the  above 
obligation  is  to  be  void,  otherwise  it  is  to  remain  in  full  force. 

9.  Sheriff^ s  return  upon  ivrit  of  replevin  sued  out  by  the  tenant. 

On  the day  of I  replevied  and  caused  to  be  de- 
livered unto  C.  D.  the  goods  and  chattels  within  mentioned. 
And  on  the  same  day  I  summoned  A.  B.  as  commanded. 

10.    Sheriff^ s  return  upon  writ  of  replevin  sued  out  by  claimant  of 
distrained  property. 

Messrs.  G.  H.  and  J.  K.  two  disinterested  freeholders,  having 
been  first  duly  sworn,  as  appears  by  the  certificate  of  a  justice 
of  the  peace,  ascertained  the  value  of  the  property  within  men- 
tioned to  be  $ ,  and  E.  F.  executed  a  bond,  with  N.  O. 

his  surety,*  in  double  that  amount,  conditioned  as  the  law  di- 
rects. Whereupon,  to  wit,  on  the day  of ,  I  reple- 
vied and  caused  to  be  delivered  unto  E.  F.  the  property  afore- 
said.    And  on  the  same  day  I  summoned  A.  B.  as  commanded. 

*  As  to  the  liability  of  the  sheriff  where  he  takes  insufficient  security,  see  Jef- 
frey v.  Bastard,  4  Ad.  &  E.  823.  31  Eng.  Com.  Law  Rep.  193. 


Distress  and  replevin.  155 

11.  Declaration  in  replevin.  1  Rob.  Prac.  412,  13.  Poyc  v. 
Tillman,  7  Taunt.  642.  2  Eng.  Com.  Law  Rep.  243.  Potten 
V.  Bradley,  2  Moore  &  Payne  7S.  17  Eng.  Com.  Law  Rep. 
203. 

Tn  the  court  of  hustings  for  the  city  of  JR. — August  term  1827. 
City  of  R.  to  wit : 

Py.  R.  an  inhabitant  of  the  city  of  R.  complains  of  H.  B.  M. 
also  an  inhabitant  of  the  same  city,  for  that  the  said  H.  B.  M. 
heretofore,  to  wit,  on  the  18th  day  of  June  in  the  year  1827,  at 
the  said  city  of  R.  and  within  the  jurisdiction  of  this  court,  in 
a  certain  dwellinghouse  then  and  there  occupied  by  a  certain 
PV.  P.  F.  took  the  goods  and  chattels,  to  wit,  one  sideboard  and 
one  large  mahogany  dining  table,  of  him  the  said  JV.  R.  of  great 
value,  to  wit,  of  the  value  of  $  60,  and  unjustly  detained  the 
same  against  sureties  and  pledges,  until  &c.  Wherefore  the  said 
W.  R.  saith  that  he  is  injured  and  hath  sustained  damage  to  the 
amount  of  $  100.     And  therefore  he  brings  his  suit  &c. 

12.  Plea  alleging  property  to  he  in  a  third  person,  with  a  suggestion 

in  the  nature  of  an  avoivry.     1  Rob.  Prac.  413. 

In  the  court  of  hustings  for  thecity  of  i2. — August  term  1827. 

H.  B.  M.  ads.  W.  R. — And  the  said  H.  B.  M.  by  his  attorney 
comes  and  defends  the  wrong  and  injury,  when  &c.  and  says, 
that  the  said  goods  and  chattels  in  the  said  declaration  men- 
tioned, at  the  said  time  when  &c.  were  the  property  of  W.  P. 
F.  in  the  said  declaration  named,  and  not  of  the  said  W.  R.  as 
by  the  said  declaration  is  above  supposed.  And  this  he  the  said 
H.  B.  M.  is  ready  to  verify.  Wherefore  he  prays  judgment  if 
the  said  W.  R.  ought  to  have  or  maintain  his  aforesaid  action 
thereof  against  him  &c.  x\nd  for  having  the  value  of  the  said 
goods  and  chattels,  with  interest,  damages  and  costs,  according 
to  the  form  of  the  statute  in  such  case  made  and  provided,  the 
said  H.  B.  M.  well  avows  the  taking  of  the  said  goods  and  chat- 
tels in  the  said  declaration  mentioned,  of  the  said  W.P.  F.  and 
justly  &c.  because  he  saith  that  he  the  said  H.  B.  M.  for  a  long 
time,  to  wit,  for  all  the  time  during  which  the  rent  herein  after- 
mentioned  was  accruing  due,  and  from  thence  until  and  at  the 
said  time  when  &c.  was  landlord  to  the  said  W.  P.  F.  of  the 
said  dwellinghouse  in  which  &c.  and  that  the  said  W.  P.  F.  for 
a  long  time,  to  wit,  for  the  space  of  one  quarter  of  a  year,  end- 
ing on  the  first  day  of  June  in  the  year  1827,  and  from  thence 
until  and  at  the  said  time  when  &c.  held  and  enjoyed  the  said 
dwellinghouse  in  which  &c.  with  the  appurtenances,  as  tenant 
thereof  to  the  said  H.  B.  M.  under  a  certain  demise  thereof 


156  Distress  and  rejplevin. 

theretofore  made  at  and  under  a  certain  yearly  rent,  to  wit,  the 
yearly  rent  of  one  hundred  and  twenty  dollars,  payable  quar- 
terly on  the  first  day  of  June,  on  the  first  day  of  September, 
and  on  the  first  day  of  December  in  the  year  1827,  and  on  the 
first  day  of  March  in  the  year  1828,  by  even  and  equal  portions  ; 
and  because  the  sum  of  thirty  dollars  of  the  rent  aforesaid,  for 
the  space  of  one  quarter  of  a  year  ending  as  aforesaid,  on  the 
said  first  day  of  June  in  the  year  aforesaid,  and  from  thence 
until  and  at  the  said  time  when  &c.  was  due  and  in  arrear  from 
the  said  W.  P.  F.  to  the  said  H.  B.  M.  he  the  said  H.  B.  M. 
well  avows  the  tailing  of  the  said  goods  and  chattels  in  the  said 
dwellinghouse  in  which  &c.  and  justly  &c.  as  for  and  in  the 
name  of  a  distress  for  the  said  rent  so  due  and  in  arrear  to  the 
said  H.  B.  M.  as  aforesaid,  and  which  still  remains  due  and  un- 
paid. And  this  he  the  said  jH.  5.  M.  is  ready  to  verify.  Where- 
fore he  prays  judgment,  and  the  value  of  the  said  goods  and 
chattels  to  be  adjudged  to  him,  together  with  interest  and'  da- 
mages, and  his  costs  by  him  about  his  defence  in  this  behalf  ex- 
pended, according  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

13.  Replication  to  last  plea,  and  similiter.     1  Rob.  Prac.  413. 

In  &c.  August  term  1827. 

W.  R.  V.  H.  B.  M. — And  the  said  W.  R.  as  to  the  said  plea 
in  bar  of  the  said  H.  B.  M.  to  the  said  declaration  of  him  the 
said  W.  R.  saith  that  he,  by  reason  of  any  thing  by  the  said  H. 
B.  M.  in  that  plea  above  alleged,  ought  not  to  be  barred  from 
having  and  maintaining  his  aforesaid  action  thereof  against  him 
the  said  H.  B.  M.  because  he  saith  that  the  said  goods  and  chat- 
tels in  the  said  declaration  mentioned  were  not  the  property  of 
the  said  W.  P.  F.  as  by  the  said  plea  is  alleged.  And  of  this 
he  the  said  W.  R.  puts  himself  upon  the  country.  And  the  said 
H.  B.  M.  doth  the  like. 

14.  Entry  of  issue  made  up  in  replevin  in  a  county  or  corporation 
court.     1  Rob.  Prac.  410,  11,  12. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  plaintiff  filed  his  declaration  ;  the  defendant  filed  his  plea, 
with  a  suggestion  thereto  subjoined  in  the  nature  of  an  avowry; 
and  the  plaintiff  filed  his  replication,  to  which  the  defendant 
added  a  similiter.  And  the  issue  being  now  made  up,  the  same 
is  to  be  tried  at  the  next  term. 


Distress  and  replevin.  157 

15.  Another  entry  of  issue  made  up  in  replevin^  where  the  defendant 

avowed. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  plaintiff  filed  his  declaration,  the  defendant  his  avowry,  the 
plaintiff  his  plea  to  the  said  avowry,  and  the  avowant  a  similiter 
to  the  said  plea.  And  the  issue  being  now  made  up,  the  same 
is  to  be  tried  at  the  next  term. 

16.  Avowry  of  distress.     1  Rob.  Prac.  413  to  416. 

By  the  common  law,  where  a  distress  is  taken,  the  party  dis- 
training is  bound,  upon  replevin  and  avowry,  to  set  out  his  title 
to  the  land.  The  english  statute  of  11  Geo.  2.  ch.  19.  §  22.  en- 
abled the  landlord  to  recover  by  a  shorter  process.  And  the 
Virginia  act  of  March  12.  1834  (Sess.  Acts  1833-4,  p.  76.  ch. 
64.  "§.  1.)  seems  intended  to  effect  the  same  object.  It  contains 
the  substance  of  the  first  part  of  the  english  statute,  pointing  out 
what  is  to  be  stated  by  the  avowant,  and  omits  only  the  latter 
part,  which  states  what  the  avowant  is  excused  from  setting 
forth. 

In  England  it  has  been  settled  that  in  the  case  of  a  rent  charge 
on  land,  payable  to  a  person  who  has  no  reversionary  interest  in 
the  land,  the  statute  does  not  exempt  the  avowant  from  the  ne- 
cessity of  setting  forth  his  title.  The  rent  in  this  case,  it  is  said 
by  the  judges,  cannot  be  considered  as  rent  service,  or  as  rent 
reserved  by  a  landlord  and  payable  by  his  tenant.  For  there 
cannot  be  such  rent  where  there  is  no  reversion.  Pluck  v.  Digges 
^c.  5  Bligh's  Par.  Gas.  N.  S.  31. 

Although  the  statute  provides  that  it  shall  be  lawful  for  the 
defendant  to  avow  generally,  that  the  tenant  of  the  lands  and 
tenements  whereon  the  distress  is  made,  enjoyed  the  same  un- 
der a  grant  or  demise,  at  a  certain  rent,  during  the  time  wherein 
the  rent  distrained  for  accrued,  which  rent  was  then  and  still  re- 
mains unpaid,  yet  when  the  avowry  states  a  demise  not  from 
the  avowant  but  from  another,  it  must  shew  a  holding  under  the 
avowant  by  virtue  of  that  demise.  If,  on  the  face  of  the  avow- 
ry, no  connexion  appears  between  the  avowant  and  the  person 
who  made  the  demise,  but  a  title  is  shewn  in  that  person,  to 
which  the  avowant  is  a  stranger,  the  avowry  must  be  adjudged 
bad  upon  demurrer.  Banks  v.  Angell  ^c.  7  Ad.  &  El.  843.  34 
Eng.  Com.  Law  Rep.  241. 

In  3  Ghitty's  PI.  p.  1046  to  1057  (4thLond.  and  5th  american 
edi.)  will  be  found  forms  of  avowries  and  cognizances  under  the 
english  statute,  adapted  to  various  cases. 


158  Distress  and  replevin. 

17.  Plea  of  non  tenuit.     1  Rob.  Prac.  418.  Cooper  v.  Blandy  ^. 

1  Bingh.  N.  C.  45.  27  Eng.  Com.  Law  Rep.  304. 

And  the  said  A.  B.  as  to  the  said  avowry  of  the  said  C.  D. 
saith,  that  the  said  C.  D.  by  reason  of  any  thing  by  him  in  that 
avowry  above  alleged,  ought  not  to  avow  the  taking  of  the  said 
goods  and  chattels  in  the  said  place  in  which  &c.  and  justly  &c. 
because  he  saith,  that  the  said  A.  B.  did  not  hold  or  enjoy  the 
said  dwellinghouse  in  which  &c.  with  the  appurtenances,  as  te- 
nant thereof  to  the  said  C.  D.  under  the  said  supposed  demise 
thereof  in  said  avowry  mentioned,  in  manner  and  form  as  the 
said  C.  D.  hath  above  in  his  said  avowry  in  that  behalf  alleged  ; 
and  this  he  the  said  A.  B.  prays  may  be  enquired  of  by  the 
country. 

18.  Plea  of  nothing  in  arrear.  1  Rob.  Prac.  419,  20.  Turhei-ville 
V.  Self  4  Call  580.  Davis  v.  Gyde,  2  Ad.  &  El.  623.  29  Eng. 
Com.  Law  Rep.  166. 

And  the  said  A.  B.  Sec.  (as  in  plea  of  non  tenuit)  because  he 
saith,  that  no  part  of  the  said  supposed  rent  in  the  said  avowry 
mentioned  was  or  is  in  arrear  from  the  said  A.  B.  to  the  said  C. 
D.  in  manner  and  form  as  the  said  C.  D.  hath  in  his  said  avow- 
ry in  that  behalf  alleged ;  and  this  he  the  said  A.  B.  prays  may 
be  enquired  of  by  the  country. 

19.  Appearance  for  defendant  in  circuit  courts  and  rule  to  declare. 

1  Rob.  Prac.  420. 

As  ante,  p.  14.  No.  20. 

20.  Plaintiff  in  circuit  court  nonsuited  at  the  rules  for  want  of  decla- 

ration.    1  Rob.  Prac.  420. 

The  plaintiff  having  been  ruled  to  file  his  declaration,  and 
failing  so  to  do,  on  the  motion  of  the  defendant  by  his  attorney, 
it  is  ordered  that  the  said  plaintiff  be  nonsuited.  Whereupon 
the  defendant  filed  a  suggestion  in  the  nature  of  an  avowry ; 
and  on  his  motion,  it  is  further  ordered  that  a  jury  enquire  of 
the  sum  in  arrear  (or,  the  value  of  the  property)  and  of  the  da- 
mages sustained  by  the  said  defendant  by  occasion  of  the  plain- 
tiff's suing  out  his  writ. 


Distress  and  replevifi.  159 

21.  Entry  of  declaration  and  conditional  judgment  at  the  rules  in  a 

circuit  court.     1  Rob.  Prac.  412.  420,  21. 

This  day  came  the  plaintiff  by  his  attorney,  and  filed  his  de- 
claration ;  and  the  defendant  being  duly  summoned  and  not  ap- 
pearing, on  the  motion  of  the  said  plaintiff  it  is  ordered  that 
judgment  be  entered  for  him  against  the  defendant,  for  what  da- 
mages the  said  plaintiff  ought  to  recover,  unless  the  defendant 
shall  appear  at  the  next  rules  and  answer  the  plaintiff's  action. 

22.  Conditional  judgment   confirmed  at  rules  in  a  circuit  court. 

1  Rob.  Prac.  412.  420,  21. 

The  defendant  still  failing  to  appear  (or,  the  defendant  ap- 
pearing but  not  answering  the  plaintiff's  action)  on  the  motion 
of  the  plaintiff  by  his  attorney,  it  is  ordered  that  the  conditional 
judgment  entered  in  this  cause  at  the  last  rules  stand  confirmed, 
and  that  the  plaintiff's  damages  be  ascertained  by  a  jury  at  the 
next  term. 

23.  Declaration  filed,  appearance  at  rules  in  circuit  courts  and  rule 

to  plead. 

As  anie^  p.  20.  No.  37. 

24.  Plea  to  declaration  at  rides  in  circuit  court,  and  rule  to  reply. 
1  Rob.  Prac.  421. 

This  day  came  the  defendant  by  his  attorney,  and  filed  his 
plea  to  the  plaintiff's  declaration  ;  and  a  day  is  thereupon  given 
the  plaintiff  until  the  next  rules,  to  reply  to  the  said  plea.  And 
the  same  day  is  given  the  said  defendant  there  &c. 

25.  Plaintiff  nojisuited  at  rules  in  circuit  court,  fi)r  want  of  replica- 
tion.    1  Rob.  Prac.  421. 

The  plaintiff  having  been  ruled  to  reply  to  the  defendant's 
plea,  and  failing  so  to  do,  on  the  motion  of  the  defendant  by  his 
attorney,  it  is  ordered  that  the  said  plaintiff  be  nonsuited. 
Whereupon  the  defendant  filed  a  suggestion  in  the  nature  of  an 
avowry ;  and  on  his  motion,  it  is  further  ordered  that  a  jury  en- 
quire of  the  value  of  the  property,  and  of  the  damages  sustain- 
ed by  the  said  avowant  by  occasion  of  the  plaintiff's  suing  out 
his  writ. 


160  Distress  and  replevin. 

26.  Avowry  filed  at  rules  in  circuit  court,  and  rule  to  plead. 
1  Rob.  Prac.  421. 

This  day  came  the  defendant  by  his  attorney,  and  filed  his 
avowry ;  and  a  day  is  thereupon  given  the  plaintiff  until  the 
next  rules,  to  plead  to  the  said  avowry.  And  the  same  day  is 
given  the  avowant  there  &c. 

27.  Plaintiff'  nonsuited  at  the  rules  in  circuit  court,  for  want  of  plea 
to  avowry.     1  Rob.  Prac.  421. 

The  plaintiff  having  been  ruled  to  plead  to  the  avowry,  and 
failing  so  to  do,  on  the  motion  of  the  avowant  by  his  attorney, 
it  is  ordered  that  the  said  plaintiff  be  nonsuited,  and  that  a  jury 
enquire  of  the  sum  in  arrear,  and  of  the  damages  sustained  by 
occasion  of  the  plaintiff's  suing  out  his  writ. 

28.  Plea  filed  to  avowry  at  the  rules  in  circuit  court,  and  rule  to 
reply.     1  Rob.  Prac.  421. 

This  day  came  the  plaintiff  by  his  attorney,  and  filed  his  plea 
to  the  avowry ;  and  a  day  is  thereupon  given  the  avowant  until 
the  next  rules,  to  reply  to  the  said  plea.  And  the  same  day  is 
given  the  plaintiff  there  &c. 

29.  Avowant  failhig  to  reply,  judgment  entered  for  plaintiff  in  cir- 

cuit court  at  the  rules.     1  Rob.  Prac.  421. 

The  avowant  having  been  ruled  to  reply  to  the  plaintiff's 
plea,  and  failing  so  to  do,  on  the  motion  of  the  plaintiff  by  his 
attorney,  it  is  ordered  that  judgment  be  entered  for  him  against 
the  defendant,  for  what  damages  the  said  plaintiff  ought  to  re- 
cover, and  that  those  damages  be  ascertained  by  a  jury  at  the 
next  term. 

30.  Verdict  and  judgment  for  plaintiff  in  replevin.     1  Rob.  Prac. 

422. 

oath  do  say,  that  on  the  issue  joined  they  find  for  the 

plaintiff,  and  they  do  assess  the  plaintiff's  damages  by  occasion 
of  the  wrongful  taking  and  unjust  detention  of  the  goods  and 

chattels  in  the  declaration  mentioned,  to  $ .     Therefore  it 

is  considered  by  the  court  that  the  plaintiff  recover  against  the 
defendant  {or,  avowant)  his  damages  assessed  as  aforesaid,  and 
his  costs  by  him  about  his  suit  in  this  behalf  expended.  And 
the  said  defendant  &c. 


Distress  and  replevin,  161 

81.  In  replevin  by  the  tenant,  verdict  for  the  avowant  upon  an  issue, 
and  judgment  thereupon.     1  Rob.  Prac.  422. 

oath  do  say,  that  on  the  issue  joined  they  find  for  the 

avowant ;  that  $ the  rent  (or,  of  the  rent)  in  the  avowry 

mentioned  was  and  is  in  arrear  from  the  plaintiff  to  the  avow- 
ant ;  that  the  said  rent  became  due  on  the day  of ; 

and  that  the  avowant  has  sustained  damages  by  occasion  of  the 

plaintiff's  suing  out  his  writ  of  replevin  in  this  cause,  to  $ . 

Therefore  it  is  considered  by  the  court  that  the  avowant  recover 

against  the  plaintiff  $ the  rent  so  in  arrear  as  aforesaid, 

with  interest  thereon  to  be  computed  after  the  rate  of  six  per 
centum  per  annum  from  the  said day  of  till  pay- 
ment, together  with  his  damages  assessed  as  aforesaid,  and  his 
costs  by  him  in  this  behalf  expended :  and  that  the  said  avow- 
ant have  execution  thereof  &c. 

32.  Tenant  being  nonsuit  before  issue  joined,  writ  of  enquiry  executed 
and  judgment  thereupon.  1  Rob.  Prac.  422.  Bargamin  v. 
Wercq^s  ex^or,  4  Leigh  412. 

This  day  came  the  avowant  by  his  attorney,  and  a  jury,  to 
wit,  A.  B.  &c.  being  sworn  diligently  to  enquire  of  the  rent  in 

arrear  and  of  the  damages,  upon  their  oath  do  say  that  $ , 

the  rent  {or,  of  the  rent)  mentioned  in  the  suggestion  of  the  de- 
fendant in  the  nature  of  an  avowry,  was  and  is  in  arrear  from 
the  plaintiff  to  the  defendant ;  that  the  said  rent  became  due  on 

the day  of ;  and  that  the  defendant  has  sustained 

damages  by  occasion  of  the  plaintiff's  suing  out  his  writ  of  re- 
plevin in  this  cause,  to  $ .     Therefore  it  is  considered  by 

the  court  that  the  defendant  recover  &c.  (as  last)  and  that  the 
said  defendant  have  execution  thereof  &c. 

33.  In  replevin  by  a  claimant  of  the  property,  verdict  for  defendant 
upon  an  issue,  and  judgment  thereupon.     1  Rob.  Prac.  422. 

oath  do  say,  that  on  the  issue  joined  they  find  for  the 

defendant ;  that  the  goods  and  chattels  replevied  were  of  the 
value  of  $  259.85  cents  ;  and  that  the  defendant  has  sustained 
damages  by  occasion  of  the  suing  out  the  writ  of  replevin  in 

this  cause,  to  $ .    Therefore  it  is  considered  by  the  court 

that  the  defendant  recover  against  the  plaintiff  the  value  of  the 
said  goods  and  chattels  so  ascertained,  with  interest  thereon  to 
be  computed  after  the  rate  of  six  per  centum  per  annum  from 
the  23d  day  of  October  1823  till  payment,  together  with  his 
damages  assessed  as  aforesaid,  and  his  costs  by  him  in  this  be- 
21 


162  Distress  and  replevin. 

half  expended :   and  that  the  said  defendant  have  execution 
thereof  &c. 

34.  Claimant  of  property  being  nonsuit  before  issue  joined,  writ  of 
enquiry  executed,  and  judgment  thereupon.    1  Rob.  Prac.  423. 

This  day  came  the  defendant  by  his  attorney,  and  a  jury,  to 
wit,  A.  B.  &c.  being  sworn  diligently  to  enquire  of  the  value  of 
the  goods  and  chattels  replevied,  and  of  the  danaages  sustained 
by  the  defendant  by  occasion  of  the  suing  out  the  writ  of  re- 
plevin in  this  cause,  upon  their  oath  do  say  that  the  said  goods 
and  chattels  were  of  the  value  of  $ ,  and  that  the  defen- 
dant has  sustained  damages  by  the  occasion  aforesaid  to  $ . 

Therefore  &c.  (as  last.) 

35.  Judgment  for  defendant  against  claimant,  where  the  value  of  the 

property  is  more  than  the  rent.     1  Rob.  Prac.  423. 

After  recording  the  verdict,  proceed  as  follows :  And  the  value  so 
ascertained  being  more  than  the  amount  of  the  rent  mentioned 
in  the  defendant's  suggestion  in  the  nature  of  an  avowry,  it  is 
therefore  considered  by  the  court  that  the  defendant  recover 

against  the  plaintiff  $ the  amount  of  the  said  rent,  with 

interest  thereon  to  be  computed  after  the  rate  of  six  per  centum 

per  annum  from  the  day  of till  payment,  together 

with  his  damages  assessed  as  aforesaid,  and  his  costs  &c. 


Suits  for  freedom.  163 


CHAPTER  XVI. 

SUITS    FOR    FREEDOM. 


1.  Warrant  issued  by  a  justice  upon  complaint  that  a  person  is  ille- 

gally detained  as  a  slave.     1  Rob.  Prac.  424. 

H.  county,  to  wit : 

Whereas  complaint  has  this  day  been  made  to  me,  a  justice 
of  the  peace  for  the  said  county,  by  A.  a  man  of  colour  residing 
in  the  said  county,  that  he  is  illegally  detained  as  a  slave  in  the 
possession  of  B.  C. — You  are  therefore  required  to  summon  the 
said  B.  C.  to  appear  before  me,  or  some  other  magistrate  of  the 

said  county,  at ,  on  the day  of  this  month,  to  answer 

the  complaint  so  made.  And  then  and  there  make  return  how 
you  shall  have  executed  this  warrant.  Given  under  my  hand 
this day  of . 

To  any  constable  of  the  ) 
county  of  H.  ) 

2.  Bond  required  by  a  justice,  upon  the  appearance  of  the  possessor 
of  one  alleged  to  be  illegally  detained  as  a  slave.  1  Rob.  Prac. 
424. 

Know  all  men  by  these  presents  that  we  B.  C.  of  C.  county, 
and  2\  G.  of  &c.  are  held  and  firmly  bound  unto  J.  TV.  esquire, 

governor  of  the  commonwealth  of  Virginia,  in  the  sum  of  $ , 

to  be  paid  unto  the  said  governor  or  his  successors,  for  the  use 
of  the  commonwealth;  for  the  payment  whereof  we  bind  our- 
selves jointly  and  severally,  and  each  of  us  binds  his  heirs,  exe- 
cutors and  administrators.  Sealed  with  our  seals  and  dated 
this day  of . 

The  condition  of  the  above  obligation  is  such,  that  whereas 
complaint  was  made  to  a  justice  of  the  peace  for  the  county  of 
H.  by  A.  a  man  of  colour  residing  in  the  said  county,  of  his  be- 
ing illegally  detained  as  a  slave  in  the  possession  of  B.  C.  and 
the  said  justice  thereupon  issued  his  warrant  summoning  the 
said  B.  C.  to  appear  to  answer  the  said  complaint,  and  upon  his 
appearance  he  the  said  B.  C.  has  been  required  to  give  bond 
with  security,  as  the  statute  in  such  case  directs :  Now  if  the 
above  bound  B.  C.  shall  suffer  the  said  A.  to  appear  at  the  next 


164  Suits  for  freedom. 

court  of  the  said  county  of  H.  for  the  purpose  of  petitioning  the 
said  court  to  be  allowed  to  sue  therein,  in  forma  joaupe7is,  for  the 
recovery  of  his  freedom,  then  the  above  obligation  is  to  be  void, 
otherwise  to  remain  in  full  force. 

B.  a  [seal]. 

T.  G.  [seal]. 

3.  Warrant  of  justice  committing  complainant  to  custody.     1  Rob. 

Prac.  424. 

H.  county,  to  wit : 

To  the of  the  said  county. 

Whereas,  upon  complaint  being  made  to  me,  a  justice  of 
the  peace  for  the  said  county,  by  A.  a  man  of  colour  residing 
therein,  that  he  was  illegally  detained  as  a  slave  in  the  posses- 
sion of  B.  C.  I  issued  a  warrant  summoning  the  said  B.  C.  to 
appear  to  answer  the  said  complaint,  and  upon  his  appearance 
I  required  him  to  give  bond  with  security  in  the  penalty  of 

$ ,  conditioned  that  he  should  suffer  the  said  A.  to  appear 

at  the  next  court  of  the  said  county  of  H.  for  the  purpose  of  pe- 
titioning the  said  court  to  be  allowed  to  sue  therein,  in  forma 
pauperis,  for  the  recovery  of  his  freedom ;  and  whereas  the  said 
B.  C.  has  failed  to  give  security  as  aforesaid :  These  are  there- 
fore to  require  you,  who  are  the  officer  by  whom  the  warrant 
was  served,  to  take  the  said  A.  into  your  custody,  and  him  safely 
keep,  at  the  expense  of  the  said  B.  C.  until  the  sitting  of  the  next 
court  for  the  said  county,  when  you  are  to  produce  the  said  A. 
before  the  said  court.     Given  &c. 

4.  Petition  to  the  co2irt,  by  person  who  complains  that  he  is  illegally 

detained  as  a  slave.    1  Rob.  Prac.  424,  5. 

To  the  court  of  the  county  of  H. 

The  petition  of  A.  a  man  of  colour  respectfully  represents, 
that  he  is  illegally  detained  as  a  slave  in  the  said  county,  in  the 
possession  of  B.  C.  Thei  material  facts  of  his  case  are  as  fol- 
lows :  (Here  state  them.)  Upon  these  facts  your  petitioner  con- 
ceives that  he  has  good  cause  of  action  against  the  said  B.  C. 
And  he  prays  the  court  to  assign  him  counsel  to  prosecute  his 
suit,  and  to  take  such  further  order  in  the  premises  as  may  be 
right  and  proper. 

H.  county,  to  wit :  This  day personally  appeared  be- 
fore me,  a  justice  of  the  pfeace  for  the  said  county,  and  made 
oath  that  he  verily  believes  the  foregoing  petition  states  truly  the 

material  facts  of  the  case.     Given  under  my  hand  this day 

of . 


Suits  for  freedom.  165 

5.  Order  assigning  counsel  to  the  petitioner.  1  Rob.  Prac.  425. 

The  petition  of  A.  a  man  of  colour,  complaining  that  he  is 
illegally  detained  as  a  slave  in  the  said  county  in  the  possession 
of  B.  C.  was  this  day  presented  to  the  court.  And  upon  inspec- 
tion of  the  said  petition  and  of  the  affidavit  thereto  subjoined, 
the  court  doth  assign  D.  E.  gentleman,  as  counsel  to  the  com- 
plainant, to  prosecute  his  suit.  But  before  process  issues  upon 
the  said  petition,  mr.  E.  is  to  make  an  exact  statement  to  the 
court  of  the  circumstances  of  the  case,  with  his  opinion  there- 
upon. 

6.  Order  awarding  process  to  answer  the  complaint.     1  Rob.  Prac. 

425. 

D.  E.  gent,  this  day  presented  to  the  court  a  paper  purport- 
ing to  be  an  exact  statement  of  the  circumstances  of  the  case  of 
A.  a  man  of  colour,  with  his  opinion  thereupon.  And  the  court, 
seeing  no  reason  to  deny  its  interference,  doth  order  the  clerk  to 
issue  process  against  B.  C.  to  appear  and  answer  the  said  A.^s 
complaint.  And  the  said  A.  is  to  be  in  custody  of  the  sheriff 
until  the  said  B.  C.  shall  give  bond  with  security,  either  in  court 
or  with  the  clerk,  in  the  penalty  of  $ ,  payable  to  the  go- 
vernor or  his  successors,  to  have  the  said  A.  forthcoming  to  an- 
swer the  judgment  of  the  court,  in  which  case  the  said  A,  is  to 
be  returned  into  his  possession.  And  in  case  the  said  A.  is  re- 
turned into  the  possession  of  the  said  B.  C.  he  is  not  to  presume 
to  beat  or  misuse  him  upon  account  of  this  suit,  but  is  to  suffer 
him  to  come  to  the  clerk's  office  for  subpoenas  for  his  witnesses, 
and  to  attend  their  examinations,  and  the  trial. 

7.  Order  of  court  denying  its  interference  and  directing  no  process  to 

he  issued.     1  Rob.  Prac.  425. 

D.  E.  gent,  this  day  presented  to  the  court  a  statement  of  the 
circumstances  of  the  case  of  A.  a  man  of  colour,  with  his  opi- 
nion thereupon  :  And  from  the  said  circumstances  and  opinion, 
it  seems  to  the  court  that  there  is  manifest  reason  for  denying  its 
interference.  Wherefore  it  is  ordered  that  no  process  be  issued 
against  the  said  C.  D.  to  appear  and  answer  the  complaint. 

,8.  Bond  given  pursuant  to  order  of  court,  to  have  complainant  forth- 
coming to  answer  its  judgment.     1  Rob.  Prac.  425. 

Know  all  men  &c.  (pursuing  the  form  of  the  obligation  given 
ante,  p.  163.  No.  2.) 


166  Suits  for  freedom. 

The  condition  of  the  above  obligation  is  such,  that  whereas, 
at  a  court  held  for  the  said  county  on  &c.  the  said  court,  after 
ordering  the  clerk  to  issue  process  against  B.  C.  to  appear  and 
answer  the  complaint  of  A.  a  man  of  colour,  of  his  being  ille- 
gally detained  as  a  slave,  did  farther  order  that  the  said  A. 
should  be  in  custody  of  the  sheriff  until  the  said  B.  C.  should 
give  bond  with  security,  either  in  court  or  with  the  clerk,  in  the 

penalty  of  $ ,  payable  to  the  governor  or  his  successors,  to 

have  the  said  A.  forthcoming  to  answer  the  judgment  of  the 
court:. Now  if  the  said  B.  C.  shall,  when  required  by  the  said 
court,  have  the  said  A.  forthcoming  to  answer  the  judgment  of 
the  said  court  in  the  premises,  then  the  above  obligation  is  to  be 
void,  otherwise  to  remain  in  full  force. 

[seal]. 

[seal]. 

9.  Process  to  answer  the  complaint.     1  Rob.  Prac.  425,  6. 

The  usual  process  is  a  writ  of  capias  ad  respondendum  to  an- 
swer an  action  of  trespass,  assault  and  battery  and  false  impri- 
sonment.    See  p.  1.  2.  3.  No.  1.  2. 

Endorse — "  This  is  an  action  to  recover  freedom.  No  bail  re- 
quired." 

The  writ  issues,  is  made  returnable,  and  is  executed,  like  the 
writ  of  capias  ad  respondendum  in  ordinary  actions. 

10.  Declaration.     1  Rob.  Prac.  426. 

Like  the  declaration  in  an  action  of  trespass,  assault  and  bat- 
tery and  false  imprisonment.  See  opinion  of  Tucker,  J.  in  Wil- 
son V.  Isbell,  5  Call  427,  8. 

11.   Conditional  judgment.     1  Rob.  Prac.  427. 

This  day  came  the  plaintiff  by  his  attorney,  and  filed  his  de- 
claration ;  and  the  defendant  being  arrested  and  not  appearing, 
on  the  motion  of  the  plaintiff,  it  is  considered  that  he  recover 
his  freedom,  together  with  the  damages  which  he  has  sustained 
by  occasion  of  the  matters  in  the  declaration  mentioned,  unless 
the  defendant  shall  appear  at  the  next  rules  and  answer  the 
plaintiff's  action. 

12.  Conditional  judgment  confirmed,  and  lorit  of  enquiry  awarded. 
1  Rob.  Prac.  427. 

As  in  the  action  of  trespass,  assault  and  battery  and  false  im- 
prisonment.    See  p.  14.  No.  19. 


Suits  for  freedom,  .  167 

13.  Writ  of  enquiry  executed,  and  judgment  for  'plaintiff.     1  Rob. 

Prac.  427. 

This  day  came  the  plaintiff  by  his  attorney,  and  a  jury,  to 
wit,  A.  B.  &c.  being  sworn  diligently  to  enquire  of  damages  in 
this  suit,  upon  their  oath  do  say  that  the  plaintiff  hath  sustained 
damages  by  occasion  of  the  matters  in  the  declaration  men- 
tioned, to  one  cent :  Therefore  it  is  considered  by  the  court  that 
the  plaintiff  recover  his  freedom,  and  also  that  he  recover  against 
the  defendant  his  damages  assessed  as  aforesaid,  and  his  costs 
&c.     And  the  said  defendant  maybe  taken  &c. 

14.  Issue  joined,  and   office  judgment   set   aside.     1    Rob.    Prac. 

426,  7. 

The  defendant  by  his  attorney  saith,  that  the  plaintiff  is  a 
slave,  and  that  he  the  said  defendant  is  not  guilty  in  manner 
and  form  as  the  plaintiff  hath  complained,  and  of  this  he  puts 
himself  upon  the  country;  and  the  plaintiff  by  his  attorney  says 
that  he  is  not  a  slave,  but  is  free,  and  puts  himself  upon  the 
country  likewise.  Whereupon,  on  the  motion  of  the  said  de- 
fendant, it  is  ordered  that  the  judgment  entered  in  the  office 
against  him  be  set  aside. 

15.  Verdict  for  plaintiff  on  the  issue  joined,  and  judgment  there- 

upon.    1  Rob.  Prac.  432. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  &c.  who  being  elected,  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined,  upon  their  oath 
do  say  that  the  plaintiff  is  not  a  slave,  but  is  free,  and  that  the 
said  defendant  is  guilty  in  manner  and  form  as  the  plaintiff  has 
complained ;  and  they  do  assess  the  damages  which  the  plain- 
tiff has  sustained  by  occasion  of  the  matters  in  the  declaration 
mentioned,  to  one  cent.  Therefore  it  is  considered  by  the  court 
that  the  plaintiff  recover  his  freedom,  and  also  that  he  recover 
against  the  defendant  his  damages  assessed  as  aforesaid,  and 
his  costs  &c.     And  the  said  defendant  may  be  taken  &c. 

16.  Verdict  for  defendant  on  the  issue  joined,  and  judgment  there- 

upon.   1  Rob.  Prac.  432. 

oath  do  say,  that  the  plaintiff  is  a  slave,  and  that  the 

defendant  is  not  guilty  in  manner  and  form  as  the  plaintiff  has 
complained,  as  the  said  defendant  in  pleading  has  alleged. 
Therefore  it  is  considered  by  the  court  that  the  plaintiff  take  no- 
thing by  his  bill,  and  that  the  defendant  go  thereof  without  day. 


168  Cases  of  caveat. 


CHAPTER  XVII. 

CASES    OF    CAVEAT. 


1.  Summons  issued  on  receiving  a  certified  copy  of  a  caveat.     1  Rob. 

Prac.  435  to  438. 

The  commonwealth  &c.  Whereas  J.  S.  hath  entered  a  caveat 
in  the  land  office  against  the  issuing  a  grant  to  B.  S.  and  T.  H. 
for  169  acres  of  land,  lying  in  the  said  county  of  G.  and  sur- 
vej^ed  by  A.  L.  for  the  said  S.  and  H.,  expressing  in  the  said 
caveat  the  cause  for  which  the  grant  should  not  issue  {or,  ex- 
pressing in  the  said  caveat  the  nature  of  the  right  on  which  the 
said  J.  S.  claims  the  said  land)  as  follows,  that  is  to  say,  (here 
recite  the  cause  for  which  the  caveat  is  entered)  and  the  said  J.  S. 
hath  duly  filed  with  the  register  of  the  land  office  an  affidavit 
that  the  said  caveat  is  really  and  bona  fide  made  with  an  inten- 
tion of  procuring  the  lands  for  him  the  said  J.  S.  and  not  in  trust 
for  the  benefit  of  the  said  B.  S.  and  T.  H. ;  all  which  appears 
by  a  certified  copy  of  the  said  caveat  and  the  affidavit  aforesaid, 
taken  from  the  register  and  delivered  to  the  clerk  of  the  circuit 
superior  court  of  law  and  chancery  for  the  said  county  of  G. 
Therefore  we  command  you  that  you  summon  the  said  B.  S.  and 
T.  H.  to  appear  on  the  first  day  of  the  next  succeeding  circuit 
court  for  the  said  county,  and  defend  their  right.     And  have  &c. 

2.  Summons  not  being  executed,  caveat  dismissed  with  costs.     1  Rob. 

Prac.  439. 

The  summons  issued  upon  this  caveat  not  being  returned  {or, 
being  returned  not  executed)  it  is  ordered  that  the  said  caveat 
be  dismissed,  and  that  the  caveator  pay  to  the  caveatee  his  costs 
by  him  about  his  defence  expended. 

3.  New  summons  awarded  on  caveat.     1  Rob.  Prac.  439. 

The  summoi.">  issued  upon  this  caveat  not  being  executed,  and 
the  court  being  satisfied  that  the  failure  to  execute  the  same  did 
not  proceed  from  the  neglect  of  the  plaintiff,  on  the  motion  of 
the  said  plaintiff  by  his  attorney,  a  new  summons  is  awarded 
against  the  defendant,  returnable  here  on  the  first  day  of  the 
next  term. 


Cases  of  caveat.  169 

4.   Oath  of  jury  on  a  caveat.     1  Rob.  Prac.  439. 

In  the  caveat  depending  between  A.  B.  plaintiff  and  C  D. 
defendant,  you  sliall  well  and  truly  find  such  facts  as  are  mate- 
rial to  the  cause  and  not  agreed  by  the  parties,  and  a  true  ver- 
dict give  according  to  the  evidence.     So  help  you  God. 

5.  Facts  found  upon  a  caveat.     1  Rob.  Prac.  438. 

The  summons  issued  upon  this  caveat  being  returned  execu- 
ted, this  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  &c.  who  being  sworn  well  and  truly 
to  find  such  facts  as  are  material  to  the  cause  and  are  not  agreed 
by  the  parties,  brought  in  a  verdict  in  these  words:  (Here  in- 
sert the  verdict.) 

6.   Upon  facts  found  on  a  caveat,  judgment  for  defendant. 
1  Rob.  Prac.  438. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  matters  of  law  arising  upon  the  facts  found  by  the  jury 
being  argued,  it  seems  to  the  court  here  that  the  law  is  for  the 
defendant :  Therefore  it  is  considered  that  the  defendant  reco- 
ver against  the  plaintiff  his  costs  by  him  about  his  defence  in 
this  behalf  expended,  and  that  the  said  defendant  have  a  copy 
of  this  judgment,  to  deliver  into  the  land  office,  for  the  purpose 
of  vacating  the  said  caveat. 

7.   Upon  facts  found  on  a  caveat,  judgment  for  plaintiff.     1  Rob. 

Prac.  438. 

This  da}'  came  the  parties  &c.  and  thereupon  &c.  it  seems  to 
the  court  that  the  law  is  for  the  plaintiff:  Therefore  it  is  consi- 
dered that  the  plaintiff  recover  against  the  defendant  his  costs 
by  him  in  this  behalf  expended,  and  that  the  said  plaintiff  have 
a  copy  of  this  judgment,  so  that  he  may  deliver  the  same  into 
the  land  office,  and  do  what  the  law  requires  to  entitle  himself 
to  a  grant. 

S.  Ujpon  facts  found  on  a  caveat,  judgment  for  defendant,  without 
prejudice.  1  Rob.  Prac.  439.  Guerrant  v.  Baghy,  6  Munf. 
160. 

After  the  form  next  before  the  last,  add  these  words :  But  this  judg- 
ment is  not  to  prejudice  any  suit  in  chancery  which  the  plaintiff 
may  be  advised  to  bring,  to  vacate  the  patent  found  by  the  jury, 
22 


170  Cases  of  caveat. 

or  any  patent  that  may  issue  to  the  defendant  in  consequence  of 
this  judgment. 

9.  On  a  caveat  against  a  grant  upon  a  resurvey,  jtidgment  for  plain- 
tiff upon  the  facts  found.  1  Rob.  Prac.  440.  Preston  v.  Har- 
vey, 2  Hen.  &  Munf.  55. 

Therefore  it  is  considered  that  no  grant  issue  to  the  caveatee 
in  pursuance  of  his  inclusive  survey,  made  the  30th  day  of 
December  1793,  under  an  order  of  the  county  court  of  B.  grant- 
ing leave  to  comprehend  in  one  survey  his  several  adjoining 
claims.  And  it  is  further  considered  that  the  caveator  recover 
against  the  caveatee  his  costs  by  him  in  this  behalf  expended. 

10.  On  a  caveat  against  a.  grant  upon  a  resurvey,  judgment  for  de- 

fendant upon  the  facts  found.     1  Rob.  Prac.  440. 

Therefore  it  is  considered  that  the  said  caveat  be  vacated,  and 
that  the  defendant  recover  against  the  plaintiff  his  costs  by  him 
about  his  defence  in  this  behalf  expended. 


Ejectment.  171 


CHAPTER  XVIII. 

ACTION    OF    EJECTMENT. 


1.  Notice  to  tenant  to  quit.     1  Rob.  Prac.  447.   Aslin  S(C.  v.  Sum- 
mersett,  1  Barn.  &  Ad.  135.    20  Eng.  Com.  Law  Rep.. 361. 

Tomr.  C.  X>. 

Sir, 
I  hereby  (as  agent  for  mr.  J.  N.  your  landlord,  and  on  his  be- 
half) give  you  notice  to  quit  and  deliver  up  possession  of  the 
house,  lands  and  premises,  with  the  appurtenances,  situate  at 

in  the  county  of ,  which  you  hold  of  (him)  as 

tenant  thereof,  on  the day  of next,  when  the  cur- 
rent year  of  your  tenancy  will  expire.     Dated  the  day 

of . 

2.  Declaration  in  ejectment.     1  Rob.  Prac.  450.  451. 

In  the  circuit  superior  court  of  law  and  chancery  for  the 
county  of  H. 

John  Doe  complains  of  Richard  Roe,  for  this,  to  wit,  that 
whereas  J.  W.  on  the  third  day  of  July  in  the  year  1S18,  at  the 
county  of  H.  aforesaid,  had  demised  to  the  said  John  Doe  a  cer- 
tain tenement  in  the  city  of  R.  in  the  county  aforesaid,  contain- 
ing half  an  acre  of  land,  and  numbered  in  the  plan  of  the  said 
city  547,  with  the  appurtenances,  to  have  and  to  hold  the  same 
to  the  said  John  Doe  and  his  assigns,  from  the  second  day  of 
July  in  the  same  year  1818,  to  the  full  end  and  term  of  twenty 
years  thence  next  following,  and  fully  to  be  completed  and 
ended ;  by  virtue  of  which  said  demise  the  said  John  Doe  en- 
tered into  the  said  tenement  with  the  appurtenances,  and  was 
thereof  possessed  for  the  term  so  thereof  granted  as  aforesaid; 
and  the  said  John  Doe  being  so  possessed  thereof,  the  said  Rich- 
ard Roe  afterwards,  to  wit,  on  the  13lh  day  of  August  in  the 
year  last  aforesaid,  with  force  and  arms  entered  into  the  said 
tenement  with  the  appurtenances,  which  the  said  J.  W.  had  so 
demised  to  the  said  John  Doe  for  the  term  aforesaid,  which  is 
not  expired,  and  ejected  the  said  John  Doe  from  his  said  tene- 
ment with  the  appurtenances,*  and  other  wrongs  to  him  then 
and  there  did,  to  the  great  damage  of  the  said  John  Doe,  and 


172  ~      EjectMint. 

against  the  peace  of  the  commonwealth  of  Virginia.  Where- 
fore the  said  John  Doe  sailh  that  he  is  injured  and  hath  sustained 
damage  to  the  value  of  $500.  And  therefore  he  brings  his 
suit  &c. 

*  If  the  plaintiff  declares  ivith  more  than  one  county  the  first  will 
stop  here,  and  the  second  will  he  inserted  as  follows :  And  also  for 
this,  to  wit,  that  whereas  A.  B.  on  &c.  at  &c.  had  demised  to 
the  said  John  Doe  a  certain  other  tenement  in  &c.  with  the  appur- 
tenances, to  have  and  to  hold  the  same  to  the  said  John  Doe  and 
his  assigns,  from  the  second  day  of  July  in  the  year  last  afore- 
said, to  the  full  end  and  term  of  twenty  years  thence  next  fol- 
lowing, and  fully  to  be  complete  and  ended  ;  by  virtue  of  which 
said  last  mentioned  demise  the  said  John  Doe  entered  into  the 
said  last  mentioned  tenement  with  the  appurtenances,  and  was 
thereof  possessed  for  the  said  last  mentioned  term  so  thereof 
granted  as  aforesaid  ;  and  the  said  John  Doe  being  so  possessed 
thereof,  the  said  Richard  Roe  afterwards,  to  wit,  on  &c.  with 
force  and  arms  entered  into  the  said  lastmentioned  tenement 
with  the  appurtenances,  which  the  said  A.  B.  had  demised  to 
the  said  John  Doe  for  the  term  last  aforesaid,  which  is  not  yet 
expired,  and  ejected  the  said  John  Doe  from  his  said  lastmen- 
tioned tenement  with  the  appurtenances. 

The  last  count  in  the  declaration  will  have,  after  the  word  "  op- 
purtenan^es,"  the  concluding  words  "  and  other  wrongs^^  ^.  as  they 
are  given  above  after  the  asterisk. 

3.  Notice  from  the  fictitious  to  the  real  defendant  to  appear  at  court. 
1  Rob.  Prac.  451. 

To  mr.  J.  B. — I  am  informed  that  you  are  in  possession  of  or 
claim  title  to  the  premises  mentioned  in  this  declaration  of  eject- 
ment, or  to  some  part  thereof;  and  I  being  sued  in  this  action  as 
a  casual  ejector,  and  having  no  claim  or  title  to  the  same,  do 
advise  you  to  appear,  in  person  or  by  attorney,  in  the  circuit 
superior  court  of  law  and  chancery  for  the  county  of  H.  on  the 
first  day  of  the  next  term,  and  then  and  there,  by  a  rule  of  the 
said  court,  to  cause  yourself  to  be  made  defendant  in  my  stead  ; 
otherwise  I  shall  suffer  judgment  to  be  entered  against  me,  and 
you  will  be  turned  out  of  possession.  Given  under  my  hand 
this  19th  day  of  March  1819. 

Yours  &c.  Richard  Roe. 


Ejectment.  173 

4.  Notice  from  the  fictitious  to  the  real  defendant  to  appear  at  rules. 
Sess.  Acts  1838,  p.  75.  ch.  97.  <^  1. 

{As  last,  to)  do  advise  you  to  appear  at  the  clerk's  oflSce  of 
the  circuit  superior  court  of  law  and  chancery  for  the  county  of 
H.  at  the  rules  to  be  holden  for  the  said  court  on  the  first  mon- 
day  in next,  and  then  and  there,  by  a  rule  for  that  pur- 
pose, to  cause  yourself  to  be  made  defendant  in  my  stead ; 
otherwise  I  shall  suffer  judgment  to  be  entered  against  me,  and 
you  will  be  turned  out  of  possession.  Giver,  under  my  hand 
this day  of . 

5.  Affidavit  of  service  on  the  real  defendant.     1  Rob.  Prac.  452. 

C.  D.  maketh  oath  and  saith  that  he  did,  on  the day  of 

-,  personally  serve  J.  B.  tenant  in  possession  of  the  pre- 


mises mentioned  in  the  declaration  of  ejectment  hereunto  an- 
nexed, with  a  true  copy  of  the  said  declaration  and  of  the  no- 
tice thereunder  written,  and  at  the  same  time  read  over  to  the 
said  J.  B.  the  said  notice,  and  explained  to  him  the  intent  and 
meaning  of  the  said  declaration  and  notice,  and  of  the  service 
thereof.  C.  D. 

Sworn  to  this day  of ,  before  me,  a  justice  of  the 

peace  for  the  county  of  H.  E.  F. 

6.  Statement  shewing  the  profits  and  damages  which  the  plaintiff  means 
to  demand.     1  Rob.  Prac.  87.     Sess.  Acts  1838,  p.  75.  ch.  97. 

In  the  circuit  superior  court  of  law  and  chancery  for  the  coun- 
ty of  H. 

Between  John  Doe  on  the  demise  of {or,  on  the  several 

demises  of and )  plaintiff,  and  Richard  Roe  defen- 
dant. 

The  following  statement  shews  the  amount  of  profits  and 
other  damages  up  to  the  date  of  the  notice,  which  the  plaintiff 
means  to  demand:  (They  will  then  be  stated.) 

7.  Conditional  order.     1  Rob.  Prac.  452.  Sess.  Acts  1838,  p.  75. 

ch.  97. 

John  Doe        plaintiff       ^  In  ejectment  for  a  certain  tenement 

against  >  in  the  city  of  i?.  in  the  county  of  H. 

Richard  Roe     defendant.  )  containing  half  an  acre  of  land,  and 

numbered  in  the  plan  of  the  said  city 
547,  with  the  appurtenances,  of  the 
demise  of  J.  W. 


174  Ejectment. 

This  day  came  the  plaintiff  by  his  attorney,  and  filed>.his  de- 
claration against  the  defendant,  with  a  note  from  the  said  de- 
fendant to  J.  B.  and  an  affidavit  thereunder  written,  and  also  a 
statement  shewing  the  amount  of  'profits  and  other  damages  which  the 
plaintiff  means  to  demand.*  Whereupon,  it  appearing  by  the  said 
affidavit  that  the  said  J.  B.  the  tenant  in  possession  of  the  pre- 
mises, hath  been  duly  served  with  a  copy  of  the  said  declara- 
tion and  the  note  thereunder  written,  and  he  not  appearing  al- 
though solemnly  called,f  it  is  ordered  that  unless  he,  having  legal 
notice  of  this  order,  or  those  under  whom  he  claims,  or  some  or 
one  of  them,  do  appear  here  on  the  first  day  of  the  next  term, 
and  make  himself,  herself  or  themselves  defendant  or  defen- 
dants in  this  suit  in  the  room  of  the  said  Roe,  plead  the  general 
issue,  confess  the  lease,  entry  and  ouster  in  the  declaration  sup- 
posed, and  enter  into  the  common  rule  to  insist,  at  the  trial,  only 
on  the  title,  judgment  shall  be  given  for  the  plaintiff,  and  a  writ 
of  possession  awarded  him. 

*  If  no  such  statement  be  filed,  the  words  in  italics  will  of  course  be 
omitted. 

t  The  words  "  although  solemnly  called"  can  be  omitted  when  the 
order  is  entered  at  rules. 

8.  Judgment  by  default  in  ejectment.     1  Rob.  Prac.  452. 

This  day  came  the  plaintiff  by  his  attorney,  and  it  appearing, 
by  the  affidavit  of  T.  R.  that  T.  B.  tenant  in  possession  of  the 
premises,  hath  been  duly  served  with  a  copy  of  the  conditional 
order  made  in  this  cause,  and  he  not  appearing  although  solemn- 
ly called,  it  is  considered  by  the  court  that  the  plaintiff  recover 
against  the  defendant  his  term  yet  to  "come,  of  and  in  the  tene- 
ment aforesaid,  with  the  appurtenances  :  Whereupon  the  plain- 
tiff prays  a  writ,  to  the  sheriff  of  the  said  county  to  be  directed, 
to  cause  him  to  have  his  possession  of  his  term  aforesaid,  yet  to 
come  ;  and  to  him  it  is  granted,  returnable  here  &c. 

9.  Defendant  made  and  judgment  confessed  in  ejectment. 

W.  S.  on  his  motion  is  admitted  defendant  in  this  suit,  in  the 
room  of  the  said  Roe.  And  thereupon,  in  his  proper  person,  he 
comes  and  says  that  he  cannot  gainsay  the  plaintiff's  action, 
and  agrees  that  judgment  may  be  entered  for  the  plaintiff  for 
his  term  yet  to  come,  of  and  in  the  tenement  aforesaid,  with  the 
appurtenances  :  Therefore,  with  the  assent  of  the  plaintiff,  it  is 
considered  by  the  court  that  the  plaintiff  recover  against  the 
said  defendant  his  term  aforesaid.     And  a  writ  is  awarded  the 


Ejectment.  175 

plaintiff,  to  the  sheriff  of  this  county  to  be  directed,  to  cause 
hira  to  have  his  possession  of  his  term  aforesaid. 

10.  Person  makes  himself  defendant,  'pleads  general  issue,  and  enters 

into  the  common  rule.     1  Rob.  Prac.  452. 

T.  B.  on  his  motion  is  admitted  defendant  in  this  suit,  in  the 
room  of  the  said  Roe,  and  thereupon,  by  his  attorney,  comes  and 
defends  the  force  and  injury,  when  &c.  pleads  the  general  issue, 
confesses  the  lease,  entry  and  ouster  in  the  declaration  supposed, 
and  agrees  to  insist,  at  the  trial,  only  upon  the  title. 

11.  Where  there  are  several  tenants,  who  sever  in  pleading,  and  each 
enters  into  the  consent  rule  for  himself.  1  Rob.  Prac.  453.  Pot- 
ter V.  Scoville,  5  Wend.  96. 

C.  D.,  E.  F.  and  G.  H.  alleging  that  they  are  in  possession, 
severally,  of  distinct  portions  of  the  premises  demanded,  and 
hold  by  separate  titles,  without  any  connexion  or  community  of 
interest,  on  their  several  motions  they  are  admitted  as  defen- 
dants in  this  suit,  not  jointly,  but  severally.  And  thereupon 
each  of  them  comes  by  his  attorney,  and  defends  the  force  and 
injury,  when  &c.  pleads  severally  the  general  issue,  and  agrees 
to  insist,  at  the  trial,  only  upon  the  title. 

12.   Order  of  surveij.     1  Rob.  Prac.  454. 

On  the  motion  of  the  plaintiff,  it  is  ordered  that  the  surveyor 

of  this  county  do  go  upon  the  land  in  controversy,  on  the 

day  of next,  if  fair,  if  not,  the  next  fair  day,  and  survey 

and  lay  out  the  same  as  either  party  shall  require,  and  return 
three  fair  plats  and  reports  thereof  to  the  court ;  and  that  any 
one  of  the  justices  of  the  county  do  then  and  there  meet  him, 
and  examine  and  take  the  depositions  of  such  witnesses  as  shall 
be  produced  by  any  of  the  parties,  which  are  to  be  returned 
with  the  said  plats  and  reports.  And  the  sheriff  of  the  county 
is  to  attend  the  said  survey,  and  remove  force  if  any  shall  be 
offered. 

13.   Upon  death  of  lessor,  security  for  costs  required.     1  Rob.  Prac. 

454. 

It  appearing  to  the  satisfaction  of  the  court  that  since  this  ac- 
tion was  commenced  the  lessor  of  the  plaintiff  has  died,  on  the 
motion  of  the  defendant  by  his  attorney,  security  is  required  for 


176  Ejectment. 

the  payment  of  such  costs  as  may  be  awarded  the  said  defen- 
dant. 

14.   U2Jon  death  of  defendant,  scire  facias  awarded  against  his  heirs 
or  devisees.     1  Rob.  Prac.  454. 

The  plaintiff,  by  his  attorney,  suggests  to  the  court  that  the 

defendant  has  died,  and  that are  his  heirs  {or,  devisees.) 

Whereupon,  on  the  motion  of  the  plaintiff,  a  writ  of  scire  facias 
is  awarded  against  the  said  heirs  {or,  devisees.) 

15.   Writ  of  scire  facias  against  defendant's   heirs   or  devisees. 
1   Rob.  Prac.  472. 

The  commonwealth  &c.  Whereas  an  action  of  ejectment 
was  lately  depending  in  our  circuit  superior  court  of  law  and 
chancery  for  the  county  of  H.  between  John  Doe  lessee  of  A.  B. 
plaintiff,  and  C.  D.  defendant,  for  the  recovery  of  lands,  and 
before  verdict  was  rendered  therein  the  said  C.  D.  died  ;  and  it 

is  suggested  that are  the  heirs  {or,  devisees)  of  the  said 

C.  D. — Therefore,  at  the  instance  and  on  behalf  of  the  plaintiff 
in  the  said  action,  we  command  you  that  you  make  known  to 

the  said ,  that  they  be  before  the  judge  of  our  said  circuit 

superior  court,  at  &c.  on  the  first  day  of  the  next  term,  to  shew 
cause,  if  any  they  can,  why  the  said  action  should  not  be  pro- 
ceeded in  to  a  final  judgment.     And  have  &c. 

16.  U]pon  return  of  scire  facias  executed,  heirs  or  devisees  made  par- 

ties to  the  action.     1  Rob.  Prac.  454. 

The  scire  facias  issued  against  the  heirs  {or,  devisees)  of  the 
said  C.  D.  being  returned  executed,  and  no  good  cause  being 
shewn  to  the  contrary  of  what  followeth,  it  is  ordered  that  the 
said  heirs  {or,  devisees)  be  made  parties  to  the  action,  and  that 
the  cause  proceed  in  the  same  manner  as  if  they  had  been  ori- 
ginally parties  thereto.  And  the  said  heirs  {or,  devisees)  asking 
a  continuance  of  the  cause  until  the  next  term,  the  same  is  con- 
tinued accordingly. 

17.  Term  of  demise  enlarged.     1  Rob.  Prac.  454,  5.  Blackwell  v. 
Patton  ^.  7  Cranch  477.   Walden  v.  Craig,  9  Wheat.  576. 

On  the  motion  of  the  plaintiff  by  his  attorney,  leave  is  granted 
him  to  amend  his  declaration,  by  enlarging  and  extending  his 
term  in  the  demised  premises  mentioned  in  the  said  declaration. 
Whereupon  the  amendment  was  accordingly  made,  by  inserting 


Ejectment.  177 

the  word  "  twenty"  before  the  words  "five  years"  in  the  said 
declaration,  so  as  to  malie  the  term  of  the  demise  twenty-five 
instead  of  five  years. 

18.  A  new  demise  added.     1  Rob.  Prac.  454.  Jackson  v.  Kough^ 

1  Caines*s  Rep.  261. 

On  the  motion  of  the  plaintiff  by  his  attorney,  and  for  good 
cause  shewn,  leave  is  granted  him  to  amend  his  declaration,  by 
adding  a  count  upon  the  demise  of  another  person  :  Whereupon 
the  amendment  was  accordingly  made,  by  adding  a  count  upon 
the  demise  of  E.  F. 

19.  Notice  to  plaintiff  who  claims  ander  a  mortgage  which  is  satis- 

fied.    1  Rob.  Prac.  457. 

To  mr.  A.B. 

Sir,  An  ejectment  for  the  recovery  of  lands  having  been 
brought  in  the  circuit  superior  court  of  law  and  chancery  for  the 
county  of  H.  against  me,  at  the  suit  of  John  Doe,  lessee  of  you 
the  said  A.  B.  and  you  being*  a  mortgagee  of  those  lands,  and 
If  the  mortgagor  thereof,  I  hereby  give  you  notice  that  it  is  my 
intention,  in  my  defence,  to  prove  by  legal  evidence  at  the  trial 
of  the  said  action,  that  the  whole  debt  to  secure  which  the  mort- 
gage was  made,  and  all  interest  thereon,  have  been  paid  and 
satisfied  {oi-,  that  the  duty,  to  secure  performance  whereof  the 
mortgage  was  made,  has  been  fully  performed.)  Given  under 
my  hand  this day  of . 

*  If  the  action  be  by  the  heirs  of  a  mortgagee,  insert  here  the  words 
"  the  heirs  of." 

t  If  the  action  be  against  the  heir  of  the  mortgagor,  insert  the  words 
"the  heir  of;"  or  if  it  be  against  any  other  person  claiming  under  the 
mortgagor  or  his  heirs,  insert  the  words  "  claiming  under,"  or  "  claim- 
ing under  the  heirs  of" 

20.  Notice  to  plaintiff  who  claims  under  a  trtist  tvhich  is  satisfied. 

1  Rob.  Prac.  457. 

To  mr.  A.  B. 

Sir,  An  ejectment  for  the  recovery  of  lands  having  been 
brought  in  the  circuit  superior  court  of  law  and  chancery  for 
the  county  of  H.  against  me,  at  the  suit  of  John  Doe,  lessee  of 
you  the  said  A.  B.  and  you  being*  a  trustee  in  whom  the  legal 
title  of  the  lands  claimed  has  been  vested  by  deed  of  trust,  and 
I  beingt  the  grantor  in  the  said  deed  of  trust,  I  hereby  give  you 
notice  that  it  is  my  intention,  in  my  defencci  to  prove  by  legal 
23 


178  Ejectment. 

evidence  at  the  trial  of  the  said  action,  that  the  trust  for  which 
the  said  deed  of  trust  was  made,  and  all  the  purposes  of  the 
said  deed,  have  been  fully  accomplished.  Given  under  nay  hand 
this day  of . 

*  If  the  action  be  by  the  heirs  of  a  trustee,  insert  the  words  "  the 
heirs  of" 

t  If  the  action  be  against  the  heir  of  the  grantor,  insert  the  words 
"  the  heir  of;"  or  if  it  be  against  any  other  person  claiming  under  the 
grantor  or  his  heirs,  insert,  instead  of  "  being,"  the  words  "  claiming 
under,"  or  "  claiming  under  the  heirs  of" 

21.  Notice  by  defendant  who  is  a  vendee^  or  the  heir  of  a  vendee ^  en- 
titled to  specific  execution.     1  Rob.  Prac.  458. 

To  mr.  A.  B. 

Sir,  An  ejectment  having  been  brought  in  the  circuit  superior 
court  of  law  and  chancery  for  the  county  of  H.  by  John  Doe  as 
lessee  of  you  the  said  A.  B.  against  me,  for  recovery  of  lands 
sold  by  you*  the  said  A.  B.  to  me,t  and  I  having  plain  written 
evidence  of  my  purchase  and  of  the  precise  terms  thereof,  duly 
signed,  and  having  moreover  paid  all  the  purchase  money  by  me 
contracted  to  be  paid,  and  done  and  performed  all  things  on  my 
part  contracted  to  be  done  and  performed,  I  hereby  give  you 
notice  that  at  the  trial  of  the  cause  I  shall  give  in  evidence  the 
written  contract  under  which  I  claim  and  hold,  and  shall  adduce 
all  other  legal  evidence  of  the  facts  aforesaid,  upon  which  my 

equitable  right  depends.     Given  under  my  hand  this day 

of . 

*  If  the  action  be  by  the  heirs  of  the  vendor,  then,  in  lieu  of  the 
words  "  by  you  the  said  A.  B."  insert  "  by  C.  D.  whose  heirs  you  are." 

t  If  the  action  be  against  the  heirs  of  the  vendee,  then,  in  lieu  of  the 
words  "  to  me,"  insert  "  to  E.  F.  whose  heir  I  am." 

22.  Special  verdict  returned.     1  Rob.  Prac.  458. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  &c.  v/ho  being  elected,  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined,  upon  their  oath 
returned  a  special  verdict  in  these  words  :  (Here  insert  it.) 

23.  Judgment,  under  the  statute,  for  defendant  entitled  to  a  convey- 
ance of  the  legal  title  from  the  vendor  or  his  heirs.  1  Rob.  Prac. 
458,  9. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  special  verdict  found  in  this  cause  being  maturely  consider- 


Ejectment.  17§ 

ed,  the  court  is  of  opinion  that  the  defendant  would  in  equity  be 
entitled  to  specific  execution  of  the  contract  found  by  the  ver- 
dict, and  to  a  conveyance  of  the  legal  title  of  the  land  to  him 
from  the  lessor  of  the  plaintiff,  without  any  condition  proper  in 
equity  to  be  on  him  imposed  :  Therefore  it  is  considered  by  the 
court  that  the  plaintiff  take  nothing  by  his  bill,  but  for  his  false 
clamour  be  in  mercy  &c.  and  that  the  defendant  go  thereof 
without  day,  and  recover  against  the  lessor  of  the  plaintiff  his 
costs  by  him  about  his  defence  in  this  behalf  expended. 

24.  Judgment  against  vendee,  or  heirs  of  vendee,  who  made  defence 

under  the  statute.     1  Rob.  Prac.  458,  9. 

This  day  came  &c.  and  thereupon  &c.  the  court  is  of  opinion 
that  the  legal  title  of  the  land  is  in  the  lessor  of  the  plaintiff,  and 
that  the  defendant  would  not  be  entitled  in  equity  to  an  uncon- 
ditional decree  for  a  conveyance  of  that  legal  title  to  him : 
Therefore  it  is  considered  by  the  court  that  the  plaintiff  recover 
against  the  defendant  his  term  yet  to  come,  of  and  in  the  mes- 
suage and  lands,  with  the  appurtenances,  in  the  said  verdict 
mentioned,  together  with  one  cent  the  damages  assessed  by  the 
jury,  and  his  costs  by  him  about  his  suit  in  this  behalf  expended. 
And  the  said  defendant  may  be  taken  &c.  Whereupon  the 
plaintiff  prays  a  writ,  to  the  sheriff  of  this  county  to  be  direct- 
ed, to  cause  him  to  have  his  possession  of  his  term  aforesaid, 
yet  to  come  &c.     And  to  him  it  is  granted. 

25.  General  verdict  for  plaintiff,  and  judgment  thereon.     1  Rob. 

Prac.  460.  462. 

oath  do  say  that  the  defendant  is  guilty  in  manner  and 


form  as  the  plaintiff  hath  complained,  and  they  do  assess  the 
plaintiff's  damages  by  occasion  thereof  to  one  cent  besides  his 
costs  :  Therefore  it  is  considered  by  the  court  that  the  plaintiff 
recover  against  the  defendant  his  term  {or,  terms)  yet  to  come, 
of  and  in  the  lands,  with  the  appurtenances,  in  the  declaration 
mentioned,  together  with  his  damages  assessed  as  aforesaid,  and 
his  costs  &c.  (as  last.) 

26.  Verdict  for  plaintiff,  assessing  damages  for  mesne  profits  ;  and 
judgment  thereon.  1  Rob.  Prac.  87.  Sess.  Acts  1838,  p.  75. 
ch.  97.  <^  2. 

oath  do  say  that  the  defendant  is  guilty  in  manner  and 

form  as  the  plaintiff  hath  complained,  and  they  do  assess  the 
damages  for  the  mesne  profits  of  the  lands  in  the  declaration 


180  Ejectment. 

mentioned,  to  $ .   Therefore  it  is  considered  by  the  court 

that  the  plaintiff  recover  against  the  defendant  his  term  {or, 
terms)  yet  to  come,  of  and  in  the  said  lands  with  their  appurte- 
nances, together  with  the  damages  assessed  as  aforesaid,  and 
the  costs  by  the  plaintiff  about  his  suit  in  this  behalf  expended  ; 
which  damages,  as  well  as  the  costs,  are  for  the  use  of  the  lessor 
of  the  plaintiff,  his  executors  or  administrators.  And  the  said 
defendant  may  be  taken  &c.     Whereupon  &c.  (as  in  No.  24.) 

27.    Verdict  for  less  land  than  the  quantity  slated  in  the  declaration, 
and  judgment  thereupon.     1  Rob.  Prac.  461,  2,  3. 

oath  returned  a  verdict  in  these  words  :  (Here  insert  it.) 

Therefore  it  is  considered  by  the  court  that  the  plaintiff  recover 
against  the  defendant  his  term  yet  to  come,  of  and  in  the  400 
acres  of  land  in  the  said  verdict  specified,  being  part  of  the 
lands  in  the  declaration  mentioned,  together  with  his  damages 
assessed  as  aforesaid,  and  his  costs  &c.  And  the  said  defendant 
may  be  taken  &c.  And  as  to  the  residue  of  the  premises  in  the 
declaration  mentioned,  it  is  considered  that  the  plaintiff,  for  his 
false  clamour,  be  in  mercy  &c.  and  that  the  defendant  go  thereof 
without  day.     Whereupon  the  plaintiff  prays  &c. 

28.   General  verdict  for  defendant,  and  judgment  thereon.     1  Rob. 
Prac.  460,  61,  63. 

oath  do  say  that  the  defendant  is  not  guilty  of  the  tres- 
pass and  ejectment  in  the  declaration  complained  of,  as  in  plead- 
ing he  hath  alleged.     Therefore  &c.  (as  in  No.  23.) 

29.  After  verdict  for  plaintiff,  term  of  demise  enlarged,  and  then 
judgment  entered.  1  Rob.  Prac.  455.  Throckmorton  v.  Cooper's 
lessee,  3  Munf.  93. 

It  appearing  to  the  court  that  pending  this  suit  the  term  of  the 
demise  mentioned  in  the  declaration  has  expired,  on  the  motion 
of  the  plaintiff  by  his  attorney,  the  court  doth  allow  him  to 
amend  the  said  declaration,  by  enlarging  his  term  :  And  the 
amendment  being  accordingly  made,  by  inserting  the  word 
••  twenty"  before  the  words  *'  five  years"  in  the  declaration,  so 
as  to  make  the  term  of  the  plaintiff  twenty-five  instead  of  five 
years,  it  is  thereupon  considered  by  the  court  that  the  plaintiff 
recover  against  the  defendant  his  term  yet  to  come,  of  and  in 
the  piece  or  parcel  of  land,  with  the  appurtenances,  in  the  said 
declaration  mentioned,  together  with  one  cent  the  damages  by 
the  jurors  in  their  verdict  assessed,  and  his  costs  &c.  (as  in  other 
judgments  for  the  plaintiff.) 


Ejectment.  181 

30.  Where  land  is  recovered  west  of  the  Alleghany,  and  defendant 
seeks  to  get  the  value  of  his  improvements,  judgment  suspended  till 
allegations  can  be  enquired  into.     1  Rob.  Prac.  463. 

The  defendant  in  possession,  against  whom  judgment  was 
entered  in  this  suit,  having  adduced  evidence  before  this  court, 
tending  to  shew  that  he,  and  those  under  whom  he  claims  and 
whose  rights  he  holds,  have  bona  ^de  settled  the  land  recovered, 
under  and  by  virtue  of  grants  from  the  commonwealth  issued 
previous  to  the  passage  of  the  act  of  March  10th  1832,  and 
made  valuable  and  permanent  improvements  thereon,  over  and 
above  the  value  of  the  use  and  occupation  thereof;  and  the 
court  being  satisfied  of  the  probable  truth  of  these  allegations  ; 
it  is  ordered  that  the  execution  of  the  said  judgment  be  sus- 
pended, until  the  said  allegations  can  be  enquired  of  by  a  jury. 

31.  Jury  sworn  to  ascertain  the  additional  value  given  to  the  land  by 
the  imjjrovements  ;  and  verdict  found.     1  Rob.  Prac.  463. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  &c.  who  being  impannelled  and 
sworn,  well  and  truly  to  ascertain  the  reasonable  additional  value 
given  to  the  land  recovered  in  this  suit,  by  the  permanent  im- 
provements made  on  the  same,  previous  to  notice  delivered  by 
the  plaintiff  or  his  agent,  in  writing,  to  the  defendant  or  tenant 
in  possession,  of  the  adverse  title,  over  and  above  a  reasonable 
allowance  for  the  use  and  occupation  thereof,  upon  their  oath  do 
say  that  they  ascertain  the  reasonable  additional  value  so  given 
to  the  said  land  by  the  permanent  improvements  made  as  afore- 
said, to  be  S .     And  the  amount  so  ascertained  by  the 

jury  constituting  a  lien  on  the  said  lands,  it  is  ordered  that  no 
process  issue  for  changing  the  possession  thereof,  until  the  said 
amount  shall  be  fully  paid  and  discharged. 

32.  Pending  injunction  to  judgment,  term  of  demise  having  expired, 
rule  to  enlarge  the  same.  1  Rob.  Prac.  455.  Noland  v.  Crom- 
well, 6  Munf.  185. 

It  appearing  to  the  court  that  within  a  year  after  judgment 
was  rendered  for  the  plaintiff,  an  injunction  was  awarded  there- 
to, which  has  been  dissolved  within  the  year  last  past,  and  it 
further  appearing  that,  pending  the  injunction,  the  term  of  the 
demise  mentioned  in  the  declaration  has  expired ;  on  the  mo- 
lion  of  the  plaintiff  by  his  attorney,  it  is  ordered  that  the  defen- 
dant be  summoned  to  appear  here  on  Saturday  next,  to  shew 
cause,  if  any  he  can,  why  the  said  term  should  not  be  enlarged, 


182  Ejectment. 

and  a  writ  awarded  the  plaintiff  to  have  possession  of  the  term 
so  enlarged. 

33.  Rule  to  enlarge  term  ivhich  had  expired  pending  injunction ,  made 
absolute,  and  writ  of  possession  awarded.  1  Rob.  Prac.  455. 
Noland  v.  Cromwell,  6  Munf.  185. 

This  day  came  the  plaintiff  by  his  attorney,  and  the  summons 
awarded  against  the  defendant  on  Wednesday  last  being  returned 
executed,  the  said  defendant  was  solemnly  called,  but  came  not : 
whereupon  it  is  ordered  that  the  rule  against  him  be  made  abso- 
lute. And  the  term  of  the  plaintiff  being  accordingly  enlarged, 
by  making  it  twenty-five  instead  of  five  years,  a  writ  is  awarded 
the  said  plaintiff,  to  cause  him  to  have  his  possession  of  his 
term  aforesaid,  yet  to  come  &c. 


Writs  of  right.  183 


CHAPTER  XIX. 


WRITS    OF    RIGHT. 


1.   Writ  of  prcBcipe  quod  reddat.     1  Rob.  Prac.  465. 

This  writ  is  to  be  in  the  form  or  to  the  effect  prescribed  by  the  act  in 
1  R.  C.  1819,  p.  463.  ch.  118.  §  1. 

2.  Count.     1  Rob.  Prac.  466. 

This  is  to  be  in  the  form  or  to  the  effect  prescribed  by  the  act  in  1 
R.  C.  1819,  p.  464. 

3.  Conditional  order.     1  Rob.  Prac.  467. 

This  day  came  the  demandant  by  his  attorney,  and  filed  his 
count ;  and  the  tenant  having  been  summoned  and  not  appear- 
ing, the  court  doth  order  that  unless  he  appear  at  the  next  term, 
judgment  shall  be  given  against  him.  But  the  demandant  is  to 
have  a  copy  of  this  order  delivered  to  the  tenant,  or  left  at  the 
place  of  his  usual  abode,  fifteen  days  or  more  before  the  next 
term  ;  and  aSidavit  made  thereof. 

4.  Judgment  for  want  of  appearance.     1  Rob.  Prac.  467. 

This  day  came  the  demandant  by  his  attorney,  and  it  appear- 
ing by  the  affidavit  of  H.  L.  C.  that  he  delivered  a  copy  of  the 
conditional  order  made  in  this  caiise  to  the  tenant,  more  than 
fifteen  days  before  the  commencement  of  the  present  term,  the 
said  tenant  was  this  day  solemnly  called,  but  came  not:  There- 
fore it  is  considered  by  the  court  that  the  demandant  recover 
against  the  tenant  his  seisin  of  the  said  tenement  with  the  ap- 
purtenances, to  hold  to  him  and  his  heirs,  quit  of  the  said  tenant 
and  his  heirs  forever;  and  also  that  the  demandant  recover 
against  the  tenant  his  costs  &c.  And  the  said  tenant  in  mercy 
&c.  Whereupon  the  demandant  prays  a  writ,  to  the  sheriff  of 
this  county  to  be  directed,  to  cause  him  to  have  his  seisin  afore- 
said ;  and  to  him  it  is  granted. 


184  Writs  of  right. 

5.   Where  the  prcecipe  is  returned  not  found,  if  in  a  circuit  court. 
1  Rob.  Prac.  467. 

The  writ  of  prcecipe  quod  reddat  issued  in  lliis  cause,  directed 
to  the  sheriff  of  this  county,  being  returned  by  the  said  sheriff 
that  the  tenant  is  not  found  in  his  bailiwicli,  on  the  motion  of 
the  demandant  by  his  attorney,  he  is  allowed  to  sue  forth  a  writ 
of  exigi  facias,  returnable  here  at  the  next  term.  And  the  court 
doth  direct  that  a  copy  of  the  writhe  printed,  within  four  weeks 
after  the  teste  thereof,  in  the  Richmond  Enquirer. 

JYote.  When  the  residence  or  last  place  of  abode  of  the  tenant  shall  be  out  of 
the  county  in  which  the  land  demanded  lieth,  a  like  writ  of  exigi  facias  should 
also  be  awarded  to  the  sheriff  of  the  latter  county. 

6.   Writ  of  exigi  facias,  and  return  thereon.     1  Rob.  Prac.  467. 

The  writ  is  to  be  in  the  form  or  to  the  effect  prescribed  by  the 
act  in  1  R.  C.  1819,  p.  465.  ch.  118.  -^  2. 

{Return.)  I  have  caused  the  within  named  C.  D.  to  be  re- 
quired from  county  court  to  county  court,  until  five  courts  be 
passed,  as  by  this  writ  I  was  commanded,  and  the  said^C  D. 
hath  not  appeared.  \ 

7.  Judgment  for  demandant  upon  return   of  exigi  facias.     1   Rob. 

Prac.  467. 

This  day  came  the  demandant  by  his  attorney  and  filed  his 
count,  and  the  writ  of  exigi  facias  awarded  in  this  cause  being 
returned  in  due  form,  and  the  same  appearing  by  an  affidavit 
of  H.  L.  C.  to  have  been  printed  as  directed  by  the  order  made 
at  the  last  term,  the  tenant  was  this  day  solemnly  called,  but 
came  not :  Therefore  &c.  (as  in  No.  4.) 

8.  Where  the  prcecipe  is  returned  not  found,  if  in  a  county  or  corpo- 

ration court.     1  Rob.  Prac.  467. 

The  writ  of  prcecipe  quod  reddat  issued  in  this  cause,  directed 
to  the  sheriff  of  this  county,  being  returned  by  the  said  sheriff 
that  the  tenant  is  not  found  in  his  bailiwick,  on  the  motion  of  the 
demandant  by  his  attorney,  he  is  allowed  to  sue  forth  a  new 
prcecipe.  And  the  court  directs  that  the  Richmond  Enquirer  shall 
be  the  public  newspaper  wherein  the  prcecipe  is  to  be  printed 
within  four  weeks  after  the  teste  thereof. 

Note.  When  the  residence  or  last  place  of  abode  of  the  tenant  shall  be  out  of 
the  county,  city  or  borough  in  which  the  land  demanded  lieth,  a  testatum  pracipe 
should  also  be  awarded  to  the  sheriff  or  proper  officer  of  the  latter  county,  city  or 
borough. 


Writs  of  right.  185 

9.  Endorsement  by  the  cleric  on  each  new  pracipe.     1  Rob.  Prac. 

467,  8. 

The  officer  to  whom  this  writ  is  directed  is  required,  within 
fourteen  days  after  its  testCj  to  set  up  a  copy  of  the  writ  at  the 
door  of  his  courthouse.  C.  H.  clerk. 

10.  Return  upon  each  riew  prcecipe.     1  Rob.  Prac.  467,  8. 

The  tenant  named  in  the  within  writ  is  not  found  in  my  bai- 
liwick, and,  within  fourteen  days  after  its  teste,  I  set  up  a  copy 
of  the  writ  at  the  door  of  the  courthouse. 

11.  Another  new  -prcecipe  awarded.     1  Rob.  Prac.  467. 

Return  being  made  upon  the  pracipe  awarded  in  this  cause  at 
the  last  term,  directed  to  the  sheriff  of  this  county,  that  the 
tenant  is  not  found  in  his  bailiwick,  and  that,  within  fourteen 
days  after  its  teste,  he  set  up  a  copy  of  the  writ  at  the  door  of 
the  courthouse,  on  the  motion  of  the  demandant  by  his  attorney, 
he  is  allowed  to  sue  forth  a  new  prcecipe. 

12.  Judgment  for  demandant  after  five  precipes.     1  Rob.   Prac. 

467,  8. 

The  first  writ  of  prcecipe  quodreddat  issued  in  this  cause  having 
been  returned  by  the  officer  to  whom  it  was  directed,  that  the 
tenant  was  not  found  in  his  bailiwick,  and  the  demandant  hav- 
ing thereupon  sued  forth  a  new  prcecipe  every  court  for  five 
courts  following  successively,  and  return  of  the  said  five  writs 
being  made,  that  the  tenant  was  not  found  in  the  bailiwick  of 
the  officer  to  whom  they  were  directed,  and  that  a  copy  of  each 
had  been  set  up  at  the  door  of  the  courthouse  within  fourteen 
days  after  its  teste,  as  required  by  law,  and  it  appearing  that  a 
copy  of  the  first  was  printed  in  the  Richmond  Enquirer  within 
four  weeks  after  the  teste  thereof,  and  the  tenant  not  having  ap- 
peared at  the  court  to  which  any  one  of  the  said  writs  was  re- 
turnable, and  not  now  appearing,  the  demandant  this  day  filed 
his  count,  and  it  is  thereupon  considered  by  the  court  that  the 
said  demandant  recover  against  the  tenant  his  seisin  of  &c.  (as 
in  No.  4.) 

13.  Plea  of  nontenure. 

See  concerning  it,  1  Rob.  Prac.  468,  9. 
24 


186  Writs  of  right. 

14.  Plea  of  joint  tenancy. 

See  concerning  it,  1  Rob.  Prac.  468,  9. 

15.  Plea  of  several  tenancy. 

See  concerning  it,  1  Rob.  Prac.  465.  468,  9. 

16.  Plea  of  demandant's  death  before  suit  brought. 

See  concerning  it,  1  Rob.  Prac.  469,  70.  122. 

17.  Judgment  where  plea  of  nontenure  is  sustained  as  to  parcel  of  the 
land  demanded.     1  Rob.  Prac.  469. 

After  recording  the  jurxfs  verdict  upon  the  issue,  or  the  courCs 
opinion  upon  the  demurrer,  "proceed  as  follows :  Therefore  it  is  con- 
sidered that  the  writ  be  abated  for  the  quantity  of  the  nontenure 
found  by  the  jur3'  {or,  alleged  in  the  said  plea)  and  that  the  de- 
fendant go  thereof  without  day. 

18.  Judgment  where  plea  of  joint  tenancy  is  sustained.     1  Rob. 

Prac.  469. 

Therefore  it  is  considered  that  the  writ  be  abated,  and  that 
the  defendant  go  thereof  without  day.  And  it  is  further  consi- 
dered that  the  defendant  recover  against  the  demandant  his 
costs  by  him  about  his  defence  in  this  behalf  expended. 

19.  Judgment  where  plea  of  joint  tenancy  is  disproved.     1  Rob. 

Prac.  469. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  A.  B.  &c.  who  being  elected,  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined,  upon  their  oath 
do  say  that  on  the  said  issue  they  find  against  the  truth  of  the 
plea  pleaded  by  the  defendant,  and  they  assess  the  demandant's 
damages  by  reason  of  the  defendant's  withholding  possession  of 
the  tenement  demanded,  to  $ .  Therefore  it  is  consi- 
dered by  the  court  that  the  demandant  recover  against  the  de- 
fendant his  seisin  of  the  said  tenement,  to  hold  to  him  and  his 
heirs,  quit  of  the  said  defendant  and  his  heirs  forever.  And  it 
is  further  considered  that  the  demandant  recover  against  the  de- 
fendant, according  to  the  statute,  $ ,  being  double  the  da- 
mages assessed  by  the  jury,  and  his  costs  &c. mercy  &c. 

Whereupon  &c.  (as  in  other  judgments  for  the  demandant's 
seisin.) 


Writs  of  right.  187 

20.  Demurrer  to  the  count. 

See  concerning  it,  1  Rob.  Prac.  470. 

21.  Plea  in  bar.     1  Rob.  Prac.  470,  71.       . 

The  plea  should  be  in  the  form  or  to  the  effect  prescribed  by  the  act 
in  1  R.  C.  1819,  p.  464. 

22.  Replication  to  plea  iii  bar.     1  Rob.  Prac.  471. 

The  replication  should  be  in  the  form  or  to  the  effect  prescribed  by 
the  act  in  1  R.  C.  1819,  p.  464. 

23.  Entry  of  the  mise  being  joined.     1  Rob.  Prac.  471. 

This  day  came  the  parties  by  their  attorneys,  and  the  deman- 
dants filed  their  count  against  the  tenants,  to  which  count  the 
tenants  filed  their  plea,  and  to  that  plea  the  demandants  filed 
their  replication ;  so  that  the  mise  is  now  joined  between  the 
parties. 

24.  Defence  by  other  than  the  tenant. 

See  concerning  it,  1  Rob.  Prac.  471. 

25.  Rule  made  upon  ascertaining  that  demandant  was  dead  when  the 
suit  was  brought.  1  Rob.  Prac.  122.  Dumsday  v.  Hughes, 
2  Scott  377.     30  Eng.  Cora.  Law  Rep.  454. 

The  tenants  this  day  filed  affidavits  going  to  shew  that  the 
person  who  is  called  demandant  died  many  years  before' the  in- 
stitution of  the  suit,  that  the  tenants  were  ignorant  of  this  fact 
till  after  the  mise  was  joined,  and  that  the  suit  was  in  truth  pro- 
secuted by  one  J.  W.  who  was  aware  of  the  said  death  ;  and  the 
said  tenants  moved  for  a  rule  upon  the  counsel,  attorneys  and 
agents  engaged  in  the  prosecution  of  the  suit ;  which  motion 
was  resisted  by  the  said  W.  who  filed  an  affidavit  setting  forth 
that  he  claimed  title  under  the  said  demandant,  and  that  he  be- 
lieved he  had  sufficient  title  to  enable  him  to  recover,  but  con- 
taining no  suggestion  that  he  believed  the  demandant  was  living 
when  the  suit  was  commenced.  On  consideration  whereof,  the 
court  doth  order  that  proceedings  in  this  cause  be  stayed,  till  it 
be  shewn  by  proof  that  the  demandant  was  living  at  the  com- 
mencement thereof;  and  it  is  further  ordered  that the 

attorney  who  brought  this  suit,  and  the  said  J.  W.  at  whose  in- 


188  Writs  of  right. 

stance  it  was  commenced,  be  summoned  to  appear  here  on  &c. 
to  shew  cause,  if  any  they  can,  why  an  attachment  should  not 
be  issued  against  them  for  their  contempt  of  this  court,  and 
abuse  of  its  process,  in  suing  in  the  name  of  a  dead  man. 

26.  Scire  facias  awarded  the  heirs  or  devisees  of  demandant. 
1  Rob.  Prac.  472. 

The  demandant  having  died  since  this  suit  was  brought,  and 

it  being  suggested  that are  his  heirs  {or,  devisees),  on 

their  motion  a  writ  of  scire  facias  is  awarded  them  against  the 
tenant. 

27.  Scire  facias  awarded  against  the  tenant's  heirs  or  devisees. 
1  Rob.  Prac.  472. 

The  demandant,  by  his  attorney,  suggests  that  the  tenant  has 

died,  and  that are  his  heirs  {or,  devisees.)    Whereupon, 

on  the  motion  of  the  said  demandant,  a  writ  of  scire  facias  is 
awarded  him  against  the  said  heirs  {or,  devisees.) 

28.  Writ  of  scire  facias  in  favour  of  demandant'' s  heirs  or  devisees. 

1  Rob.  Prac.  472. 

The  commonwealth  &c.  Whereas  a  writ  of  right  was  lately 
depending  in  our  circuit  superior  court  of  law  and  chancery  for 
the  county  of  jff.  for  the  recovery  of  a  certain  tenement,  wherein 
A.  B.  was  demandant  and  C.  D.  tenant,  and  before  verdict  ren- 
dered the  said  A.  B.  died  ;  and  it  is  suggested  that are 

the  heirs  {or,  devisees)  of  the  said  A.  B.  Wherefore,  at  iheir 
instance  and  on  their  behalf,  we  command  you  that  you  make 
known  to  the  said  C.  D.  that  he  be  before  &c.  at  &c.  on  &c.  to 
shew  cause  &c.  (as  in  p.  176.  No.  15.) 

J^ote.  As  to  the  right  of  the  devisees  to  maintain  a  writ  of  right,  or  a  scire  fa- 
cias to  revive,  see  1  Rob.  Prac.  473  to  476,  and  Taylor's  devisees  v.  Rightmire, 
8  Leigh  468. 

29.  Writ  of  scire  facias  against  tenant's  heirs  or  devisees.     1  Rob. 

Prac.  472. 

The  commonwealth  &c.  Whereas  &c.  (as  last)  and  before 
verdict  rendered  the  said  C.  D.  died,  and  it  is  suggested  that 
are  the  heirs  {or,  devisees)  of  the  said  C.  D.  Where- 
fore, at  the  instance  of  the  said  A.  B.  and  on  his  behalf,  we 
command  you  that  you  make  known  to  the  said that  they 


Writs  of  right.  1:^ 

be  before  &c.  at  &c.  on  &c.  to  shew  cause  &c.  (as  in  p.  176. 
No.  15.) 

30.  Upon  return  of  scire  facias  issued  in  favour  of  heirs  or  devisees 
of  demandant,  they  made  parties  to  the  action.  1  Rob.  Prac.  472. 

The  scire  facias  issued  on  behalf  of  the  heirs  {or,  devisees) 
of  the  said  A.  B.  against  the  tenant  being  returned  executed, 
and  no  good  cause  being  shewn  to  the  contrary  of  what  fol- 
loweth,  it  is  ordered  that  the  said  heirs  {or,  devisees)  be  made 
parties  to  the  action,  and  that  the  cause  proceed  in  the  same 
manner  as  if  they  had  been  originally  parlies  thereto. 

31.  Upon  return  of  scire  facias  against  heirs  or  devisees  of  tenant j 

they  made  parties  to  the  action.     1  Rob.  Prac.  472. 

As  in  p.  176.  No.  16. 

32.  Charge  to  the  recognitors  of  the  assize.     1  Rob.  Prac.  472. 

The  charge  is  to  be  in  the  form  or  to  the  effect  prescribed  by  the  act 
in  1  R.  C.  1819,  p.  464. 

33.  General  verdict  for  the  tenant,  and  judgment  thereupon.  1  Rob. 

Prac.  472.  478.  479. 

This  day  came  the  parties  by  their  attorneys,  and  there- 
upon twelve  good  and  lawful  men,  qualified  as  jurors  are  re- 
quired to  be,  to  wit,  A.  B.  &c.  were  elected,  tried  and  charged 
to  make  recognition  of  the  assize,  and  say  the  truth,  whether 
the  tenant  hath  more  right  to  hold  the  tenement  which  the  de- 
maTidant  demandeth  against  him  by  his  writ  of  right,  or  the  de- 
mandant to  have  it  as  he  demandeth ;  and  the  said  recognitors 
of  the  assize  upon  their  oath  do  say,  that  the  tenant  hath  more 
right  to  hold  the  said  tenement,  than  the  demandant  to  have  it 
as  he  demandeth.  Therefore  it  is  considered  by  the  court  that 
the  tenant  hold  the  said  tenement  to  him  and  his  heirs,  quit  of 
the  demandant  and  his  heirs  forever,  and  also  that  the  tenant 
recover  against  the  demandant  his  costs  by  him  in  this  behalf 
expended.     And  the  said  demandant  in  mercy  &c. 

34.  General  verdict  for  the   demandant,  and  judgment  thereupon. 

1  Rob.  Prac.  472.  478.  479. 

This  day  &c.  (as  last)  and  the  said  recognitors  of  the  assize 
upon  their  oath  do  say,  that  the  demandant  hath  more  right  to 


190  Writs  of  right. 

have  the  tenement  which  he  demandeth,  than  the  tenant  hath  to 
hold  it,  and  they  assess  the  damages  of  the  demandant  by  reason 
of  the  tenant's  withholding  possession  of  the  said  tenement,  to 
$ .  Therefore  it  is  considered  by  the  court  that  the  deman- 
dant recover  against  the  tenant  his  seisin  of  the  said  tenement, 
to  hold  to  him  the  said  demandant  and  his  heirs,  quit  of  the  said 
tenant  and  his  heirs  forever ;  and  also  that  the  said  demandant 
recover  against  the  tenant  his  damages  assessed  as  aforesaid, 
and  his  costs  &c. — mercy  &c.  Whereupon  the  demandant 
prays  a  writ,  to  cause  him  to  have  his  seisin  aforesaid ;  and  to 
him  it  is  granted,  returnable  here  &c. 

35.   General  verdict  for  demandant  for  jpart,  and  for  tenant  for  re- 
sidue ;  and  judgment  thereupon.     1  Rob.  Prac.  478. 

oath  do  say,  as  to  48  acres  of  land,  particularly  laid 

down  and  denoted  in  the  surveyor's  plat  returned  in  this  cause, 
parcel  of  the  tenement  in  the  count  demanded,  that  the  deman- 
dant hath  more  right  to  have  the  same  than  the  tenant,  and  as 
to  the  residue  of  the  tenement  demanded,  that  the  tenant  hath 
more  right  to  hold  the  same  than  the  demandant  to  have  it ;  and 
the  said  recognitors  assess  the  damages  of  the  demandant  by 
reason  of  the  tenant's  withholding  possession  of  the  said  48 

acres,  to  $ .     Therefore  it  is  considered  by  the  court  that 

the  demandant  recover  against  the  tenant  his  seisin  of  the  said 
48  acres  of  land,  to  hold  to  him  the  said  demandant  and  his 
heirs,  quit  of  the  said  tenant  and  his  heirs  forever,  and  that  the 
tenant  hold  the  residue  of  the  said  tenement  to  him  and  his  heirs, 
quit  of  the  demandant  and  his  heirs  forever.  And  it  is  further 
considered  that  the  demandant  recover  against  the  tenant  his 
damages  &c.  (as  last.) 


Dower.  191 


CHAPTER  XX. 


DOWEH. 


1.   Order  at  the  instance  of  the  heirs,  directing  widow's  dower  to  he 
assigned.     1  Rob.  Prac.  483. 


o 


A.  B.  and  C.  D.  heirs  of  E.  F.  deceased,  stating  that  G.  F. 
the  widow  of  the  said  deceased  is  entitled  to  be  endowed  of  one 
third  part  of  the  real  estate  in  this  county,  whereof  her  hus- 
band died  seized  of  an  estate  of  inheritance,  and  the  said  heirs 
desiring  that  her  dower  therein  should  be  assigned  her,  and 
asking  that  commissioners  maybe  appointed  for  that  purpose ; 
the  court,  at  the  instance  of  the  said  heirs,  appoints  J.  P.  Sec. 
or  any  two  of  them,  commissioners  to  assign  to  the  said  G.  F. 
her  dower  aforesaid,  and  make  report  to  the  court  of  such  as- 
signment. 

2.  Assignment  of  widow's  dower  returned,  and  same  established  by 
consent  of  her  and  the  heirs.     1  Rob.  Prac.  483. 

J.  P.  &c.  two  of  the  commissioners  heretofore  appointed  to 
assign  to  G.  F.  her  dower  in  the  real  estate  in  this  county 
whereof  her  husband  E.  F.  died  seized,  this  day  made  a  report 
of  their  assignment ;  and  the  said  G.  F.  being  willing  to  accept 
the  same  as  a  just  assignment,  the  court,  by  consent  as  well  of 
her  the  said  G.  F.  as  of  the  heirs  of  the  said  E.  F.  doth  estab- 
lish the  said  assignment,  and  order  that  she  hold  the  lands  so 
assigned  to  her,  as  and  for  her  dower  as  aforesaid. 

3.   Writ  de  quarantina  habenda.     1  Rob.  Prac.  484. 

Concerning  this  writ,  see  Fitzherbert's  Natura  Brevium  [161. 
162.] 

4.   Writ  of  unde  nihil  habet.     1  Rob.  Prac.  485,  6. 

The  commonwealth  of  Virginia  to  the  sheriff  of  F.  county, 
greeting :  Command  G.  F.  N.  that  justly  and  without  delay  he 
render  unto  J.  A.  and  C.  his  wife,  late  C.  N.  who  was  the  wife 
of  J.  H.  N,  deceased,  her  reasonable  dower  which  falls  to  her 


192  Dower. 

share  of  a  tenement  which  was  the  said  J.  H.  N.^s  in  his  life- 
time, situate  &c.  whereof  she  hath  nothing,  as  she  saith,  and 
whereof  she  complains  that  the  said  G.  F.  N.  unjustly  deforceth 
her ;  and  unless  he  render  the  same,  then  summon  the  said  G. 
F.  N.  that  he  be  before  &c.  at  &c.  on  &c.  to  answer  the  said  J. 
and  C.  of  the  plea  aforesaid.  And  have  then  there  this  writ. 
Witness  &c. 

5.  Count.     1  Rob.  Prac.  486. 

The  following  count  mas  Jiled  in  Ambler  &fwife  v.  Norton,  4  Hen. 
&  Munf.  23.—  ' 

F.  county,  to  wit :  J.  A.  and  C.  his  wife,  late  C.  N.  and  late 
the  wife  of  J.  H.  N.  deceased,  by  O.  W.  their  attorney,  demand 
against  G.  F.  N.  the  one  third  part  of  and  in  a  freehold  of  a 
certain  part  or  proportion  of  lot  number  62.  situate  in  the  corpo- 
ration of  W.  in  the  parish  of  F.  in  the  county  of  F.  and  within 
the  jurisdiction  of  this  court,  being  part  of  a  lot  on  which  the 
storehouse  now  occupied  by  T.  V.  stands,  extending  28  feet 
front  on  London  street,  beginning  at  &c.  and  extending  &c.  with 
the  appurtenances,  which  they  claim  as  the  reasonable  dower  of 
the  said  C.  of  the  endowment  of  the  said  J.  H.  N.  deceased, 
her  late  husband,  by  writ  of  dower,  whereof  she  or  they  have 
nothing,  and  whereof  they  complain  that  the  said  G.  F.  N.  de- 
forceth her  &c. 

6.  Plea  that  husband  was  not  seized  of  an  estate  of  inheritance ; 
with  similiter  thereto. 

The  said  tenant  comes  and  defends  the  force  and  injury,  when 
&c.  and  says  that  the  said  demandants  ought  not  to  have  and 
maintain  their  action  aforesaid  against  him,  because  he  says  that 
the  said  J.  H.  N.  or  any  other  person  to  his  use,  was  not,  at  any 
time  during  the  coverture  of  the  said  C.  with  him,  seized  of  an 
estate  of  inheritance  in  the  premises  in  the  declaration  mention- 
ed, or  of  any  part  thereof,  and  of  this  he  puts  himself  upon  the 
country  ;  and  the  demandants  likewise. 

7.  Plea  of  jointure  in  lieu  of  dower.     1  Rob.  Prac.  487,  8. 

The  following  plea  was  pleaded  in  Ambler  Sf  wife  v.  Norton,  4 
Hen.  &  Munf.  23.— 

And  the  said  tenant,  by  leave  of  the  court,  and  by  virtue  of 
the  act  of  assembly  in  such  case  made  and  provided,  for  further 
plea  saith  that  the  said  demandants  ought  not  to  have  and  main- 
tain their  action  aforesaid  against  him,  because  he  says  that  du- 


Dower.  193 

ring  the  coverture  of  the  said  C.  with  the  said  J.  H.  N.  to  wit, 
on  the  19th  day  of  November  1792,  the  said  J.  H.  N.  duly  made 
and  executed  his  last  will  and  testament,  whereby  the  said  J. 
devised  that  the  said  C.  his  wife  should  receive  an  annual  in- 
come of  £  150.  during  her  life,  out  of  the  estate  of  the  said  J. 
and  that  she  should  have  the  full  use  of  the  mansion  house  and 
other  houses  of  the  said  J.  where  the  said  J.  did  then  live,  to- 
gether with  the  ground  on  which  they  stand,  and  the  garden, 
stable  and  stable-lot,  during  the  life  of  the  said  C. — likewise  the 
free  use  of  all  the  household  and  kitchen  furniture,  plate,  linen, 
pictures,  books,  carriages,  horses,  cattle  and  house  servants  for 
her  life,  and  the  said  J.  did,  in  and  by  the  said  will,  also  give 
and  bequeath  to  the  said  C.  mulatto  Hannah  and  her  issue  ;  and 
the  said  /.  did  afterwards,  during  the  coverture  of  the  said  C. 
with  him,  to  wit,  on  the  6th  day  of  January  1794,  duly  make 
and  publish  a  codicil  to  his  said  will,  whereby  he  bequeathed 
to  the  said  C.  ^C  200.  during  her  life,  in  lieu  of  the  said  £  150. 
bequeathed  to  her  in  the  said  will,  and  did  moreover  bequeath 
to  the  said  C.  black  Beitij  and  her  issue ;  and  the  said  /.  did 
also,  during  the  coverture  of  the  said  C.  with  him,  to  wit,  on  the 
13th  day  of  October  1795,  duly  make  and  publish  one  farther 
codicil  to  his  said  will,  whereby  he  bequeathed  to  the  said  C. 
all  the  plate  to  which  he  was  entitled  on  the  death  of  mrs.  M. 
P. — which  said  will  and  the  codicils  annexed  thereto  have,  since 
the  death  of  the  said  /.  been  duly  proved  and  recorded  in  the 
court  of  F.  county,  and  are  now  in  full  force.  And  the  said 
tenant  in  fact  sailh  that  the  said  several  bequests  and  devises 
in  the  said  will  and  codicils  before  set  forth,  were  in  lieu  of  the 
said  C.^s  right  of  dower  in  the  estate  of  the  said  J.  and  that  the 
said  C.  did,  after  the  death  of  the  said  /.  and  before  the  com- 
mencement of  this  suit,  actually  enter  into  and  occupy  the  great- 
est part  of  the  property  so  as  aforesaid  devised  to  her,  to  wit, 
the  mansion  house  and  other  houses  where  the  said  J.  did  live, 
and  the  stable  and  stable-lot  and  garden,  and  hath  ever  since 
been  in  the  possession  and  occupation  thereof,  in  lieu  of  her 
dower  aforesaid.  And  this  he  is  ready  to  verify.  Wherefore 
he  prays  judgment  if  the  said  demandants  their  action  aforesaid 
against  him  ought  to  have  or  maintain  &c. 

8.   Verdict  for  demandant  where  the  hmhand  died  seized,  and  judg- 
ment thereupon.     1  Rob.  Prac.  489,  90. 

that  on  the  issue  joined  they  find  for  the  demandant ; 

and  farther  the  said  jurors  upon  their  oath  do  say,  that  the  said 
J.  G.  the  husband  of  the  demandant  died  seized  of  the  lands, 
of  her  dower  whereof  the  tenant  hath  deforced  her,  and  that  the 
25 


194  Dower. 

value  of  her  said  dower,  from  the  time  of  the  death  of  her  hus- 
band unto  this  day,  is  $ ,  and  they  assess  the  said  deman- 
dant's damages  to  that  sum  :  Therefore  it  is  considered  by  the 
court  that  the  demandant  recover  against  the  tenant  her  seisin 
of  one  full  and  equal  third  part  of  the  said  lands,  to  hold  to  her 
in  severalty,  as  and  for  her  dower  in  the  said  lands ;  and  also 
that  the  demandant  recover  against  the  tenant  her  damages  as- 
sessed as  aforesaid,  and  her  costs  &c.  And  the  said  tenant  in 
mercy  &c.  Whereupon  the  demandant  prays  a  writ,  to  cause 
her  to  have  the  seisin  so  recovered  ;  and  to  her  it  is  granted. 

9.  Verdict  for  demandant  where  the  husband  has  aliened,  and  Judg- 

ment thereupon.     1  Rob.  Prac.  490  to  493. 

that  on  the  issue  joined  they  find  for  the  demandant ; 

and  farther  the  said  jurors  upon  their  oath  do  say,  that  the  said 
J.  (r.  the  husband  of  the  demandant,  though  seized  during  the 
coverture,  of  the  land,  of  her  dower  whereof  the  tenant  hath 
deforced  her,  did  not  die  seized  of  the  said  land,  but  the  said 

J.  G.  aliened  the  same,  on  the day  of ,  to  the  tenant 

{or,  to ,  under  whom  the  tenant  claims)  and  the  said  land 

was,  at  the  time  of  the  alienation,  of  the  value  of  $ ,  and 

is  now  of  the  value  of  $ .     Therefore  it  is  considered  by 

the  court  that  the  demandant  recover  against  the  tenant  her  sei- 
sin of  what  was  one  full  and  equal  third  part  of  the  said  land, 
according  to  the  value  thereof  at  the  time  of  the  alienation  by 
her  husband,  to  hold  to  her  in  severalty,  as  and  for  her  dower 
in  the  said  land.  And  the  said  tenant  in  mercy  &c.  And  a 
writ  is  awarded  the  demandant,  to  cause  her  to  have  her  seisin 
in  a  part  of  the  said  land,  which  shall  be  the  same  proportion 
thereof,  that  one  third  of  the  value  of  the  land  at  the  time  of  the 
alienation,  is  of  the  whole  value  thereof  at  this  time. 

10.  Verdict  for  tenant,  and  judgment  thereupon.  1  Rob.  Prac.  495. 

oath  do  say,  that  on  the  issue  joined  they  find  for  the 

tenant.  Therefore  it  is  considered  by  the  court  that  the  tenant 
hold  the  tenement  demanded  against  him,  quit  of  the  deman- 
dant, and  recover  against  the  said  demandant  his  costs  by  him 
in  this  behalf  expended.  And  the  said  demandant  in  mercy 
&c. 


Unlawful  entry  or  detainer.  195 


CHAPTER  XXI. 

UNLAWFUL   ENTRY    OR   DETAINER. 


1.  Complaint  of  unlawful  entry  or  detainer.     1  Rob.  Prac.  496,  7. 

This  is  to  be  in  the  form  or  to  the  effect  prescribed  by  the  act  in  1 
R.  C.  1819,  p.  455.  §  4 

2.  Affidavit  that  complaint  is  true.     1  Rob.  Prac.  497. 

The  complaint  is  to  be  verified  by  oath  or  affirmation,  certified  at  the 
foot  thereof,  in  the  manner  prescribed  by  the  act  in  1  R.  C.  1819,  p. 
456.  §  5.  But  the  oath  or  affirmation  maybe  either  by  the  plaintiff  him- 
self or  by  any  other  person  for  him,  and  may  be  taken  before  any  justice 
of  the  peace  within  the  commonwealth.     Sess.  Acts  1825-6,  p.  26.  §  5. 

3.   Warrant  to  officer.     1  Rob.  Prac.  497. 

The  warrant  is  to  be  to  the  effect  prescribed  by  the  act  in  1  R.  C,  1819, 
p.  456.  §  6. 

4.  Offiicer's  return  upon  warrant.     1  Rob.  Prac.  497. 

I  served  this  warrant  on  the  defendant  within  nanfied,  more 
than  eight  days  before  the  return  day,  by  delivering  him  a  copy 
thereof. 

Or: 

The  defendant  within  named  could  not  be  found,  and  I  served 
this  warrant  more  than  eight  days  before  the  return  day,  by  de- 
livering a  copy  thereof  to ,  a  white  person  of  his  family, 

above  the  age  of  16  years,  at  his  usual  place  of  residence. 

Or  : 

The  defendant  within  named  could  not  be  found,  and  no  white 
person  of  his  family,  above  the  age  of  16  years,  being  found  at 
his  usual  place  of  residence,  I  served  this  warrant  more  than 
eight  days  before  the  return  day,  by  setting  up  a  copy  on  the 
tenement  within  mentioned,  in  a  conspicuous  place  to  wit,  in 
&c.  (here  specify  the  place.) 


196  Unlawful  entry  or  detainer. 

And,  in  either  case,  continue  the  return  as  follows : 

I  have  also  given   notice  of  this  warrant  to  messrs. 

and ,  two  justices  of  the  peace  for  this  county,  and  re- 
quested their  attendance  at  the  time  and  place  within  mentioned. 
And  I  have  summoned  the  following  freeholders,  to  wit,  A.  B. 
&c.  (here  name  them)  to  be  attendant  upon  the  justices,  as  jurors 
to  try  the  complaint. 

5.   Court  formed,  jury  impannelled,  evidence  heard,  and  verdict  re- 
turned.    1  Rob.  Prac.  497,  8. 

At  the  courthouse  of  the  county  of  H.  on the day 

of -,  A.  B.  and  C.  D.  gent,  justices  of  this  county,  atten- 
ded, and  constituted  a  court  for  the  trial  of  a  complaint  of  £.  F. 
against  G,  H.  for  forcibly  turning  him  out  of  possession  {or,  un- 
lawfully turning  him  out  of  possession — or,  unlawfully  holding 
him  out  of  possession)  of  a  certain  tenement,  containing  &c. 
lying  &c.  Whereupon,  it  appearing  that  the  defendant  has  been 
duly  served  with  the  warrant,  the  court  proceeded  to  impannel 
a  jury  for  the  trial  of  the  complaint,  and  /.  K.  &c.  having  been 
accordingly  impannelled,  they  were  charged  on  oath  in  the  man- 
ner prescribed  by  the  statute,*  and  the  justices  admitted  before 
them  all  legal  evidence  which  was  offered,  as  well  on  the  part 
of  the  defendant  as  on  the  part  of  the  plaintiff,  and  suffered  each 
party  to  be  heard  by  counsel ;  and  the  said  jury,  after  hearing 
the  evidence  and  the  arguments  of  counsel,  unanimously  agreed 
upon  a  verdict,  and  found  the  same  in  the  following  words,  to 
wit :  (Here  insert  it.) 

*  See  1  R.  C.  1819,  p.  457,  8. 

6.  Judgment  for  plaintiff.     1  Rob.  Prac.  498. 

After  recording  the  verdict  as  in  the  last  entry,  proceed  as  follows : 
Therefore  it  is  considered  by  the  court  that  the  plaintiff  recover 
against  the  defendant  possession  of  the  tenement  aforesaid,  and 
his  costs  by  him  in  this  behalf  expended.  And  a  writ  o^  habere 
facias  possessionem  is  awarded,  to  cause  the  said  plaintiff  to  have 
such  possession. 

7.  Judgment  for  defendant.     1  Rob.  Prac.  499. 

After  recording  the  verdict,  proceed  as  follows :  Therefore  it  is 
considered  by  the  court  that  the  said  complaint  be  dismissed, 
and  that  the  defendant  recover  against  the  plaintiff  his  costs  by 
him  in  this  behalf  expended. 


Unlawful  entry  or  detainer.  197 

8.  New  trial  granted.     1  Rob.  Prac.  498. 

AJler  recording  the  verdict  as  in  No.  5.  proceed  as  follows  :  Where- 
upon, on  the  motion  of  the  plaintiff  (or,  defendant)  and  for  rea- 
sons appearing  to  the  court,  the  said  verdict  is  set  aside,  and  a 
new  trial  granted,  upon  the  condition  that  the  plaintiff  (or,  de- 
fendant) pay  the  costs  of  the  former  trial.  And  the  cause  is 
continued  to  the  regular  term  of  this  court,  for  the  new  trial  to 
be  there  had. 

9.  New  trial  at  regular  term.     1  Rob.  Prac.  498.  500. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
a  jury  of  freeholders  was  impannelled  in  the  manner  in  which 
other  juries  are  impannelled,  and  being  so  impannelled,  they 
were  charged  on  oath  in  the  manner  prescribed  by  the  statute, 
and  the  court  admitted  before  them  &c.  (as  in  No.  5.) 

10.  Court  adjourned  in  consequence  of  jurfs  not  agreeing.     1  Rob. 

Prac.  497,  8. 

{As  in  No.  5.  to) and  the  said  jury,  after  hearing  the  evi- 
dence and  the  arguments  of  counsel,  were  sent  out  of  court  to 
consult  of  their  verdict,  and  after  some  time,  not  having  agreed 
in  their  verdict,  by  consent  of  the  parties  were  adjourned  till 
monday  morning,  eleven  o'clock,  till  which  time  the  court  is  ad- 
journed. 

1 1 .  Jury  failing  to  agree,  Juror  withdrawn,  and  cause  continued  till 

the  next  term.     Sess.  Acts  1833-4,  p.  76.  ch.  65. 

{As  last,  to) and  after  some  time  returned,  and  declared 

that  they  could  not  agree  in  a  verdict.  Whereupon,  by  consent 
of  the  parties  and  with  the  assent  of  the  court,  J.  R.  one  of  the 
jurors  aforesaid  was  withdrawn,  and  the  rest  of  the  jury  from 
rendering  their  verdict  discharged.  And  the  cause  is  continued 
till  the  next  regular  court  of  this  county,  when  a  jury  of  free- 
holders, summoned  in  the  ordinary  manner,  is  to  be  impannelled 
for  the  trial  of  the  same. 

12.  After  jury  had  failed  to  agree,  new  jury  impannelled  at  regular 

court.     Sess.  Acts  1833-4,  p.  76.  ch.  65. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
a  jury  of  freeholders,  summoned  in  the  ordinary  manner,  to  wit, 
A.  B.  &c.  were  impannelled  for  the  trial  of  this  cause,  and 


198  Unlawful  entry  or  detainer. 

charged  on  oath  in  the  manner  prescribed  by  the  statute,  and 
the  court  admitted  before  them  &c.  (as  in  No.  5.) 

13.  No  court  having  been  formed  on  the  day  appointed.  Jury  imyan- 
nelled  at  the  next  court.     Sess.  Acts  1833-4,  p.  76.  ch.  65. 

The  justices  summoned  to  form  a  court  on  the day  of 

for  the  trial  of  a  complaint  of  E.  F.  against  G.  H.  for 


forcibly  turning  him  out  of  possession  (or,  unlawfully  turning 
him  out  of  possession — or,  unlawfully  holding  him  out  of  pos- 
session) of  a  certain  tenement,  containing  &c.  lying  &c.  having 
failed  to  meet,  and  no  court  having  been  formed  on  the  day  ap- 
pointed, a  jury  of  freeholders,  summoned  in  the  ordinary  man- 
ner, to  wit,  A.  B.  &c.  were  this  day  impannelled  for  the  trial  of 
the  cause,  and  charged  on  oath  in  the  manner  prescribed  by  the 
statute,  and  the  court  admitted  before  them  &c.  (as  in  No.  5.) 

14.  Bills  of  exception  admitted  to  opiniofis  of  the  court.     1  Rob. 

Prac.  499. 

Memorandum.  In  the  course  of  the  trial  of  the  foregoing 
complaint,  certain  questions  of  law  were  submitted  by  the  de- 
fendant and  decided  by  the  court,  and  the  defendant  excepted 
to  the  opinions,  and  tendered  his  bills  of  exception,  which  were 
received,  signed  and  sealed  by  the  court,  and  ordered  to  be 
made  part  of  the  record  in  the  cause. 

15.   Certificate  of  counsel  to  procure  suspension  of  the  execution. 
1  Rob.  Prac.  499. 

I, ,  counsel  practising  in  the  court  of  H.  county,  do 

certify  that  in  my  opinion  the  judgment  this  day  rendered  in  the 
said  court  against  C.  D.  upon  the  complaint  of  A.  B.  is  erro- 
neous, and  that  I  mean  to  apply  for  a  writ  of  error  or  superse- 
deas to  correct  it.    Given  under  my  hand  this day  of . 

16.   Order  directing  execution  of  the  judgment  to  be  suspended. 
1  Rob.  Prac.  499. 

After  the  entry  of  the  judgment  against  the  defendant,  proceed  as 
folloios:  Whereupon  the  defendant  produced  the  certificate  of 
counsel  practising  in  the  court,  that  in  his  opinion  the  judgment 
is  erroneous,  and  that  he  means  to  apply  for  a  writ  of  error  or 
supersedeas  to  correct  it ;  and  on  the  motion  of  the  said  defen- 
dant, the  execution  of  the  judgment  is  to  be  suspended  for  the 
period  of  twenty  days,  provided  bond  be  giyen  in  the  penalty 


J*'         Unlawful  entry  or  detainer.  199 

of  $ ,  payable  to  the  plaintiff,  with  good  security,  and 

with  such  condition  as  the  law  directs  ;  which  bond  being  there- 
upon given,  the  execution  of  the  said  judgment  is  suspended 
accordingly,  for  the  said  period  of  twenty  days. 

1 7.  Bond  given  at  the  time  of  procuring  a  suspension  of  the  execu- 
tion.    1  Rob.  Prac.  499. 

Know  all  men  &c.  The  condition  of  the  above  obligation  is 
such,  that  whereas,  by  the  judgment  of  the  court  of  H.  county, 
this  day  rendered,  the  above  named  ^.jB.  has  recovered  against 
the  above  bound  C.  D.  possession  of  a  certain  tenement,  con- 
taining &c.  lying  &c.  and  on  the  motion  of  the  said  C.  D.  who 
produced  the  certificate  of  counsel  practising  in  the  court,  that 
in  his  opinion  the  judgment  is  erroneous,  and  that  he  means  to 
apply  for  a  writ  of  error  or  supersedeas  to  correct  it,  the  court  has 
suspended  the  execution  of  the  said  judgment  for  the  period  of 
twenty  days :  Now  if  the  said  C.  D.  shall  indemnify  the  said 
A.  B.  for  all  waste  or  injury  to  the  tenement  and  its  appurte- 
nances, which  may  be  done  or  permitted  by  the  said  C.  D.  or 
any  claiming  under  him,  then  the  above  obligation  is  to  be  void, 
otherwise  to  remain  in  full  force. 


20a  Waste. 


CHAPTER  XXII. 

WASTE. 


1.  Summons  in  action  of  waste  by  the  remainderman  against  tenant 
for  life.     1  Rob.  Prac.  500. 

that  you  summon  J.  G.  and  jP.  his  wife,  that  they  be 

before  &c.  to  answer  J.  R.  and  A.  his  wife  of  a  plea  wherefore, 
when,  by  the  laws  of  this  commonwealth,  tenant  for  term  of 
life  cannot  lawfully  commit  waste,  during  his  estate,  of  the 
houses,  woods,  or  any  other  thing  belonging  to  the  tenement  held 
by  him,  without  special  license  in  writing  so  to  do,  the  said  J. 
G.  and  F.  his  wife,  who  hold  for  the  life  of  the  said  jP.  a  tene- 
ment in  the  county  of  C.  of  which  the  remainder  is  in  the  said  A. 
the  wife  of  J.  R.  have  committed  waste,  during  their  said  es- 
tate, of  the  houses,  woods  and  other  things  belonging  to  the  said 
tenement,  without  any  such  license  as  aforesaid,  to  the  dishe- 
rison of  the  said  J.  R.  and  A.  his  wife.     And  have  &c. 

2.  Declaration  in  action  of  waste  by  the  remainderman  against  tenant 
for  life.     1  Rob.  Prac.  500. 

N.^A.  S.  an  infant  under  the  age  of  21  years,  only  child  and 
heir  of  W.  S.  by  J.  J.  W.  her  next  friend,  complains  of  E.  S.,  of 
a  plea  for  this,  to  wit ;  that,  by  the  laws  of  this  commonwealth, 
tenant  for  term  of  life  cannot  lawfully  commit  waste,  during  his 
or  her  estate,  of  the  houses,  woods,  or  any  other  thing  belong- 
ing to  the  tenement  held  by  him  or  her,  without  special  license 
in  writing  so  to  do ;  and  a  certain  tenement  of  160  acres  of  land, 
10  acres  of  pasture  and  60  acres  of  wood,  situate,  lying  and 
being  in  the  county  aforesaid,  was,  by  R.  S.  the  elder,  late  of 
the  said  county,  deceased,  by  his  last  will  and  testament,  bear- 
ing date  the  fifth  day  of  June  1782,  and  duly  proved  and  re- 
corded, devised  to  the  said  E.  S.  during  her  life,  and  after  her 
death  to  W.  S.  aforesaid  and  his  heirs  forever,  by  virtue  of 
which  devise  the  said  E.  S.  after  the  death  of  the  said  R.  en- 
tered upon  and  took  possession  of  the  said  premises,  and  still 
is  possessed  thereof,  and  the  aforesaid  TV.  S.  who  was  living  at 
the  death  of  the  said  R.  was,  by  virtue  of  the  said  devise  to 
him  as  aforesaid,  during  his  life,  seized  thereof  as  tenant  in  fee 


Waste.  201 

simple  in  remainder,  and  being  so  thereof  seized  at  the  time  of 
his  death,  died  intestate,  leaving  the  plaintiff  his  only  child  and 
heir,  who  thereupon  became  seized,  as  tenant  in  fee  simple  in 
remainder,  of  all  and  singular  the  premises  aforesaid,  and  ever 
since  has  continuedseized  of  the  same  ;  and  the  said  J5.  S.  being 
so  possessed  as  aforesaid  of  the  said  premises  for  the  term  of  her 
life,  she  the  said  E.  S.  on  the  first  day  of  January  1785,  and  at  di- 
vers days  and  times  since,  at  the  county  of  H.  aforesaid,  did 
commit  waste  of  the  same,  that  is  to  say,  5000  pine  timber 
trees,  10000  oak  timber  trees,  and  2000  poplar  trees,  ^<rhich 
were  growing  on  the  said  premises,  of  the  price  of  12  shillings 
for  each  tree,  did  cut  down,  sell  and  carry  away,  and  20000 
other  oak  timber  trees,  in  the  wood  aforesaid  here  and  there 
growing,  and  on  the  premises  aforesaid  standing,  of  the  price  of 
10  shillings  each,  did  wantonly,  needlessly  and  vvastefully  cut 
down  and  destroy,  to  the  disinheriting  of  the  said  plaintiff. 
Whereby  the  said  plaintiff  is  injured  and  hath  sustained  damage 

to  the  value  of  $ ;  and  therefore  she  brings  suit  &c.  And 

she  also  brings  here  into  court  the  last  will  and  testament  of 
the  aforesaid  R.  S.  deceased,  with  the  probate  thereof. 

3.  Attachment  awarded  in  action  of  waste.     1  Rob.  Prac.  501. 

The  plaintiff,  by  her  next  friend,  this  day  filed  her  declaration 
against  the  defendant ;  and  the  sheriff  having  made  return  that 
he  had  duly  summoned  the  defendant,  and  she  not  appearing, 
on  the  motion  of  the  plaintiff,  an  attachment  is  awarded  her 
against  the  defendant,  returnable  here  at  the  next  term. 

4.  Process  of  attachment.     1  Rob.  Prac.  501. 

that  you  attach  C.  D.  so  that  you  have  his  body  before 

&c.  to  answer  us  as  well  of  a  certain  contempt  by  him  to  us  of- 
fered, as  it  is  said,  as  upon  those  things  which  to  him  shall  be 
then  and  there  objected,  and  further  to  do  and  receive  what  our 
said  court  shall  in  that  part  consider.  And  this  you  shall  in  no 
wise  omit.     And  have  &c. 

{Endorse)  For  not  appearing  pursuant  to  a  summons  in  an 
action  of  waste  brought  by  A.  B.  against  the  within  named 
CD. 

5.  Distress  awarded.     1  Rob.  Prac.  601. 

The  sheriff  having  made  return  on  the  attachment  awarded 
against  the  defendant,  that  he  had   executed  the  same,  and 
the  said  defendant  still  failing  to  appear,  on  the  motion  of  the 
26 


202  Waste. 

plaintiff  by  her  next  friend,  process  of  distress  is  awarded  her 
against  the  defendant,  returnable  to  the  next  term. 

6.  Process  of  distress.     1  Rob.  Prac.  501. 

that  you  distrain  E.  S.  by  all  her  lands  and  chattels 

within  your  bailiwick,  so  that  neither  she,  nor  any  through  her, 
lay  hands  on  the  same  until  you  shall  receive  another  precept 
from  us,  and  that  of  the  issues  of  the  same  you  answer  to  us, 
so  that  you  have  her  body  before  the  justices  of  the  court  of  our 
said  county,  at  the  courthouse,  on  the  first  monday  in  November 
next,  to  answer  &c.  (as  in  the  summons)  and  also  to  hear  her 
judgment  of  her  many  defaults.     And  have  &c. 

7.  Defendant  not  appearing  upon  the  distress,  judgment  by  default, 
and  process  awarded  to  have  the  waste  etiquired  of.  1  Rob.  Prac. 
501. 

The  sheriff  having  made  return  on  the  process  of  distress 
awarded  against  the  defendant,  that  he  had  distrained  her  by 
all  her  lands  and  chattels  within  his  bailiwick,  as  by  the  said 
writ  he  was  commanded,  and  the  said  defendant  still  failing  to 
appear;  on  the  motion  of  the  plaintiff  by  her  next  friend,  it  is 
considered  that  the  plaintiff  recover  against  the  defendant  the 
tenement  wasted,  and  that  the  said  defendant  recompense  the 
plaintiff  in  three  times  the  amount  at  which  the  waste  shall  be 
assessed.  And  process  is  awarded,  to  the  sheriff  of  this  county 
directed,  commanding  him  in  his  proper  person  to  repair  to  the 
tenement  aforesaid,  and  there,  by  a  jury,  encLuire  of  the  waste ; 
which  process  is  to  be  returnable  to  the  next  term. 

8.  Process  to  have  the  waste  enquired  of.     1  Rob.  Prac.  501. 

Whereas  we  lately  commanded  you  that  you  should  distrain 
JE.  S.  by  all  her  lands  and  chattels  in  your  bailiwick,  so  that  &c. 
(reciting  the  process  of  distress  in  the  past  tense,  to  the  words 

"to  the  disherison  of  the  said ,"  inclusive)  and  upon  the 

said  process  you  made  return  that  &c.  (reciting  the  return.) 
Nevertheless  the  said  E.  S.  did  not  appear  upon  the  said  dis- 
tress, but  again  made  default.  Whereupon,  according  to  the 
statute  in  that  case  made,  it  was  considered  in  our  said  court 
that  in  your  proper  person  you  shall  repair  to  the  tenement  afore- 
said, and  there,  by  a  jury,  enquire  of  the  waste  committed  upon 
the  same.  Therefore  we  command  you  that  in  your  proper  per- 
son you  repair  to  the  said  tenement,  that  is  to  say,  unto  &c.  (here 
specifying  the  tenement  as  described  in  the  declaration)  and 


fVaste.  203 

there  cause  to  come  before  you  twelve  good  and  lawful  men  of 
that  vicinage,  by  whom  the  truth  of  the  matter  may  the  better 
be  known,  and  whom  neither  of  the  parties  to  the  action  touch 
by  any  affinity  ;  and  by  their  oaths  diligently  enquire  what  waste 
the  aforesaid  E.  has  committed  upon  the  said  tenement,  that  is 
to  say,  in  &c.  (here  setting  forth  the  nature  of  the  waste  as  al- 
leged in  the  declaration)  to  the  disherison  of  the  said ; 

and  the  inquisition  which  you  shall  take  herein,  you  have  before 
the  court  of  our  said  county,  at  the  courthouse,  on  the  first  mon- 
day  in  March  next.     And  have  also  then  &c. 

9.   Writ  of  enquiry  returned,  judgment  by  default  set  aside,  and  issue 
Joined.     1  Rob.  Prac.  500.  601. 

B.  C.  gent,  sheriff  of  this  county  made  return,  that  pursuant 
to  the  writ  of  enquiry  awarded  in  this  cause,  and  to  the  said 

sheriff  directed,  he  went  in  his  proper  person,  on  the day 

of ,  to  the  tenement  in  the  said  writ  mentioned,  and  there 

caused  the  waste  to  be  enquired  of  by  a  jury,  whose  verdict  ap- 
pears by  a  certain  inquisition  returned  with  the  writ.  Where- 
upon came  as  well  the  defendant  by  her  attorney,  as  the  plain- 
tiff by  her  next  friend,  and  on  the  motion  of  the  defendant,  who 
offers  to  plead  to  issue  immediately,  it  is  ordered  that  the  judg- 
ment obtained  against  her  in  the  office,  and  the  writ  of  enquiry 
then  awarded,  and  the  proceedings  had  thereupon,  be  set  aside, 
she  paying  the  costs  of  those  proceedings.  And  the  said  defen- 
dant, for  plea,  saith  that  she  has  not  committed  the  waste  com- 
plained of  in  the  declaration,  and  of  this  she  puts  herself  upon 
the  country  ;  and  the  plaintiff  likewise. 

10.    Verdict  for  plaintiff  as  to  part,  and  judgment  thereupon. 
1  Rob.  Prac.  500.  501. 

This  day  came  as  well  the  plaintiff  by  her  next  friend,  as  the 
defendant  by  her  attorney,  and  thereupon  came  a  jury,  to  wit, 
J.  M.  &c.  who  being  elected,  tried  and  sworn  the  truth  to  speak 
upon  the  issue  joined,  upon  their  oath  do  say  that  the  defendant, 
during  her  estate,  has  committed  waste  of  the  timber  trees  be- 
longing to  three  acres  of  land,  parcel  of  the  tenement  in  the  de- 
claration mentioned,  which  three  acres  are  bounded  as  follows, 
that  is  to  say,  (describing  the  parcel  as  in  the  verdict)  and  that 
she  has  committed  no  waste  of  any  thing  belonging  to  the  resi- 
due of  the  said  tenement ;  and  farther  the  said  jurors  upon  their 
oath  do  say  that  the  damages  of  the  plaintiff,  by  occasion  of  the 

waste  on  the  said  three  acres  of  land,  are  $ ,  and  the  waste 

on  the  same  is  accordingly  assessed  by  them  at  that  amount. 


204  Waste. 

Therefore  it  is  considered  by  the  court  that  the  plaintiff  recover 
against  the  defendant  her  seisin  of  the  three  acres  of  land  so 

wasted  as  aforesaid,  together  with  $ as  a  recompense  for 

her  injury,  being  three  times  the  amount  at  which  the  waste  is 
assessed.  And  the  said  defendant  in  mercy  &c.  And  a  writ 
is  awarded  the  plaintiff,  to  cause  her  to  have  her  full  seisin  of 
the  said  three  acres  of  land  so  wasted  as  aforesaid. 


Partition.  206 

CHAPTER  XXIII. 

PARTITION. 


1.  Summons  in  partition.     1  Rob.  Prac.  501,  2. 

We  command  yoa  that  you  summon  C.  D.  if  he  be  found 
within  your  bailiwick,  to  appear  before  &c.  to  answer  A.  B.  of 
a  plea  wherefore,  when  A.  B.  and  C.  D.  together  and  undivided 
hold  two  messuages  and  two  hundred  acres  of  land,  with  the 
appurtenances,  lying  and  being  in  the  county  aforesaid,  the  said 
C.  D.  to  make  partition  thereof  between  them  according  to  the 
form  of  the  statute  in  that  case  made  and  provided,  doth  gain- 
say, and  the  same  to  be  done,  unjustly  doth  not  permit.  And 
have  &c. 

2.  Jiidgment  confessed.     1  Rob.  Prac.  501,  2. 

A.  H.  widow,  plaintiff,       ^  Upon  a  writ  for  making 

against  >  partition  of  a  tenement  of 

T.  J.  and  M.  his  wife,     defendants.  )  200  acres  of  land,  with 

the  appurtenances,  in  this 

county. 
This  day  came  as  well  the  plaintiff  by  her  attorney,  as  the  de- 
fendants in  their  proper  persons,  and  the  defendants  say  that 
they  cannot  gainsay  the  action  of  the  plaintiff,  and  grant  that 
partition  between  the  defendants  and  the  plaintiff,  of  the  tene- 
ment aforesaid  with  the  appurtenances,  be  made  &c. — There- 
fore it  is  considered  by  the  court  that  partition  between  them,  of 
the  tenement  aforesaid  with  the  appurtenances,  be  made  &c. 
but  that  the  defendants  be  not  amerced,  because  they  came  the 
first  day,  according  to  the  summons.  And  for  making  such  par- 
tition, the  court  doth  award  a  writ  de  partitione  facienda,  accord- 
ing to  the  form  devised  in  the  general  court  and  adapted  to  the 
case. 

3.   Writ  de  partitione  facienda.     1  Rob.  Prac.  501,  2. 

Whereas  T.  I.  and  M.  his  wife  were  lately  summoned  in  our 
court  of  our  county  aforesaid,  before  our  justices  of  our  said 
court,  at  the  courthouse,  to  answer  A.  H.  widow,  of  a  plea 


206  Partition. 

wherefore,  when  the  said  A.  H.  and  T.  1.  and  M.  his  wife,  to- 
gether and  undivided  hold  2400  acres  of  land,  with  the  appur- 
tenances, in  the  said  county,  the  said  2\  1.  and  M.  his  wife,  that 
partition  thereof  should  be  made  between  them,  according  to 
the  form  of  the  statute  in  that  case  made  and  provided,  refused, 
and  the  same  to  be  done  did  not  permit,  unjustly  &c.  and  the 
said  T.  I.  and  M.  his  wife,  afterwards  in  our  said  court,  granted 
that  partition  thereof  should  be  made ;  whereupon  it  is  consi- 
dered in  our  said  court,  before  our  said  justices,  at  the  courthouse 
aforesaid,  that  partition  should  be  made  between  them  of  the 
tenement  aforesaid  :  Therefore,  we  command  you,  that  having 
taken  with  you  12  good  and  lawful  men  of  your  county,  by  whom 
the  truth  of  the  matter  may  be  the  better  known,  in  your  pro- 
per person  you  go  to  the  tenement  aforesaid,  with  the  appurte- 
nances, and  there,  by  their  oath,  in  the  presence  of  the  parties 
aforesaid,  by  you  to  be  warned,  if  they  are  willing  to  be  pre- 
sent, the  tenement  aforesaid  with  the  appurtenances,  by  the  oath 
of  the  good  and  lawful  men  aforesaid,  respect  being  had  to  the 
true  value  thereof,  into  two  equal  parts  you  cause  to  be  divided, 
and  deliver  and  assign  one  part  thereof  to  the  said  A.  H.  and 
the  other  part  thereof  to  the  said  T.  1.  and  M.  his  wife,  to  be 
held  in  severalty,  so  that  neither  the  said  A.  H.  nor  the  said  T. 
I.  and  M.  his  wife  may  have  more  of  the  tenements  aforesaid 
with  the  appurtenances  than  they  ought  to  have,  so  that  as  well 
the  said  A.  H.  as  the  said  T.  I.  and  M.  his  wife,  of  their  pur- 
party  may  apportion  themselves ;  and  that  you  have  such  par- 
tition, distinctly  and  openly  made,  before  our  justices  of  our  said 
county  court,  at  the  courthouse,  on  the  first  monday  in  next 
month,  under  your  seal  and  the  seals  of  those  by  whose  oath 
you  shall  make  such  partition ;  and  have  then  there  the  names 
of  those  by  whose  oath  you  shall  make  the  said  partition,  and 
this  writ.     Witness  &c. 

4.  Return  by  sheriff,  and  partition  established.     1  Rob  Prac.  500. 

501. 

This  day  came  as  well  the  plaintiff  by  her  attorney,  as  the 
defendants  in  their  proper  persons,  and  the  sheriff,  to  wit,  A.  B. 
now  returned  here  a  certain  partition  between  the  parties,  of  the 
tenement  aforesaid  with  the  appurtenances,  by  him  the  said 
sheriff,  by  virtue  of  the  said  writ,  by  the  oath  of  12  good  and 
lawful  men,  made,  in  these  words:  "I,  A.  JB."  &c.  Therefore 
it  is  considered  by  the  court  that  the  partition  aforesaid  be  held 
stable  forever  &c. 


Executions.  207 


CHAPTER  XXIV. 


EXECUTIONS. 


To  whom  executions  are  directed,  when  they  are  returnable,  and  by 
whom  they  bear  teste,  is  stated  in  1  Rob.  Prac.  507,  8,  9.  A  sugges- 
tion is  there  made  in  relation  to  the  return  day  of  executions  issuing 
from  the  circuit  courts,  which  has  been  since  adopted  by  an  act  passed 
at  the  session  of  1834-5.     Sess.  Acts,  p.  .36.  ch.  49. 

By  the  act  in  1  R.  C.  1819,  p.  524.  §  I.  it  is  declared  that  the  forms 
of  the  several  writs  of  execution  shall  be  as  therein  stated,  mutatis  mu- 
tandis. In  adapting  those  forms  to  the  various  cases  which  arise,  there 
are  some  parts  which  it  is  necessary  to  change,  and  those  parts  are 
changed  accordingly  in  the  forms  which  follow. 

1.  Fieri  facias  in  debt,  for  debt  and  costs. 

The  commonwealth  of  Virginia  to  the  sheriff  of county, 

greeting :  We  command  you  that  of  the  goods  and  chattels  of 
A.  B.  late  in  your  bailiwick,  you  cause  to  be  made  the  sum  of 

,  which  C.  D.  lately  in  our  circuit  superior  court  of  law  and 

chancery  for  the  county  oi  H.  {or,  in  our  county  court  of  H.)  hath 

recovered  against  him  for  debt,  also  the  sum  of ,  which  to 

the  said  C.  D.  in  the  same  court  were  adjudged  for  his  costs  in 
that  suit  expended,  whereof  the  said  A.  B.  is  convicted  as  ap- 
pears to  us  of  record,  and  that  you  have  the  said  sums  of  money 
before  the  judge  {or,  justices)  of  our  said  court,  on  the  first  day 

of  the  next  terra  {or,  on  the day  of next)  to  render  to 

the  said  C.  D.  of  the  debt  and  costs  aforesaid.  And  have  then 
there  this  writ.     Witness  &c. 

1/  the  judgment  be  on  a  penal  obligation,  make  the  following  en- 
dorsement: Memorandum.     This  execution  is  to  be  discharged 

by  the  payment  of ,  with  interest  thereon  to  be  computed 

after  the  rate  of  six  per  centum  per  annum  from  the day  of 

till  payment,  and  the  costs  within  mentioned. 

2.  Fieri  facias  in  debt,  for  debt,  interest  and  costs. 

you  cause  to  be  made  the  sum  of ,  with  interest 


thereon  to  be  computed  after  the  rate  of  six  per  centum  per  an- 
num from  the day  of till  payment,  which  C.  D.  late- 
ly in  &c.  hath  recovered  against  him  as  well  for  a  certain  debt 
as  for  interest  thereon  ;  also  &c. 


208  Executions. 

3.  Fieri  facias  in  debt  qui  tarn, 

you  cause  to  be  made  the  sum  of ,  which  C.  D. 

lately  in  &c.  as  well  for  us  as  for  himself  hath  recovered  against 
the  said  A.  B.  for  debt ;  also  &c. 

4.  Fieri  facias  in  case  upon  a  'promise,  for  damages  and  costs. 

you  cause  to  be  made  the  sum  of ,  which  C.  D.  late- 
ly in  &c.  hath  recovered  against  him  for  his  damages  which  he 
sustained  by  reason  of  his  the  said  A.  B.^s  not  performing  a  cer- 
tain promise  and  assumption  (or,  certain  promises  and  assump- 
tions) to  the  said  C.  D.  by  the  said  A.  B.  lately  made ;  also  &c. 

5.  Fi.  fa.  in  case  upon  a  promise,  for  damages,  interest  and  costs. 

you  cause  to  be  made  the  sum  of ,  with  interest 


thereon  to  be  computed  after  the  rate  of  six  per  centum  per  an- 
num from  the day  of'  till  payment,  which  C.  D.  lately 

in  &c.  hath  recovered  against  him  as  well  for  his  damages  which 
&c.  as  for  interest  on  those  damages ;  also  &c. 

6.  Fi.  fa.  in  covenant. 

As  in  case  upon  a  promise,  inserting,  in  lieu  of  the  words  •'  by 
reason  of  his  not  performing  a  certain  promise  and  assumption 
to  the  said  C.  D.  by  the  said  A.  R"  the  following :  "  by  occasion 
of  a  breach  of  a  certain  covenant  between  the  said  A.  B.  and 

7.  Fi.  fa.  in  trespass. 

by  occasion  of  a  certain  trespass  by  the  said  A.  B.  to 

the  said  C.  D.  offered. 

8.  Fi.  fa.  in  case  for  a  tort. 

by  occasion  of  a  certain  grievance  then  lately  commit- 
ted by  the  said  A.  B.  to  the  said  C.  D. 

9.  Fi.  fa.  for  plaintiff  in  replevin. 

by  occasion   of  the  taking  and   unjustly  detaining  the 

goods  and  chattels  of  the  said  A.  B.  by  the  said  C.  D. 


Executions.  209 

10.  Fi.  fa.  for  defendant  in  replevin,  against  the  tenant. 

We  command  you  that  of  the  goods  and  chattels  of  A.  B. 
late  in  your  bailiwick,  you  cause  to  be  made  $ ,  with  in- 
terest thereon  lo  be  computed  after  the  rate  of  six  per  centum 
per  annum  from  the day  of  till  payment,  which 

C.  D.  lately  in  &c.  hath  recovered  against  him  for  rent  in  arrear 
and    legal  interest  thereon,    also  $ which  the  said   C. 

D.  recovered  in  the  same  court  for  the  damages  sustained  by 
him    by   the    said  A.  B.'s  suing  out  a   writ  of  replevin,   and 

the  farther  sum  of  $ adjudged  lo  him  the  said  C.  D.  for 

his  costs  by  him  about  his  defence  of  that  writ  expended  ; 
whereof  the  said  A.  B.  is  convict  as  appears  of  record  ;  and  that 
you  have  the  said  sums  of  money  before  &c.  at  &c.  on  &c.  to 
render  to  the  said  C.  D.  of  the  rent,  interest,  damages  and  costs 
aforesaid.     And  have  &c. 

11.  Fi.  fa.  for  defendant  in  replevin,  against  plaintiff  who  was  not 

the  tenant. 

{As  last,  to)  which  C.  D.  lately  in  &c.  hath  recovered  against 
the  said  A.  B.  as  well  for  the  value  of  certain  property  dis- 
trained for  rent  due  him  from  E.  F.  and  replevied  by  the  said 
A.  B.  as  for  interest  thereon  from  the  date  of  the  writ  of  re- 
plevin, also  S which  the  said  C.  D.  recovered  in  the  same 

court  for  the  damages  sustained  by  him  by  occasion  of  the  suing 

out  that  writ,  and  the  further  sum  of  $ adjudged  to  him 

the  said  C.  D.  for  his  costs  by  him  about  his  defence  expended ; 
whereof  &c. — and  that  you  have  &c.  to  render  to  the  said  C. 
D.  of  the  value,  interest,  damages  and  costs  aforesaid.  And 
have  &c. 

12.  Fi.  fa.  for  plaintiff  in  ejectment,  for  his  damages  and  costs. 

Same  as  in  other  cases  for  damages  and  costs,  except  that,  after  the 
words  "  by  reason  of"  or  "  by  occasion  of,"  will  be  inserted  "  a  certain 
trespass  and  ejectment  {or,  certain  trespasses  and  ejectments)  lately 
committed  by  the  said  C.  J5." 

13.  Fi.  fa.  for  demandant  in  a  turit  of  right,  for  his  damages  and 

costs. 

Same  as  in  other  cases  for  damages  and  costs,  except  that, 
after  the  words  "  by  reason  of"  or  *•  by  occasion  of,"  will  be 
inserted  '•  the  said  C.  D.^s  withholding  possession  of  a  certain 
tenement  which  the  said  A.  B.  demanded  against  him." 
27 


210  Executions. 

14.  Fi.  fa  for  demandant  in  dower,  for  her  damages  and  costs. 

that  of  the  goods  and  chattels  of  E.  F.  in  your  baili- 
wick, you  cause  to  be  made  $ ,  which  A.  D.  widow  of 

C.  D.  deceased,  lately  in  &c.  hath  recovered  against  him  for  her 
damages  because  of  the  said  E,  F.^s  deforcing  her  of  her  dower 
of  certain  lands  whereof  her  husband  died  seized,  and  which 

dower  she  has  recovered,  also  $ which  to  the  said  A.  D. 

in  the  same  court  were  adjudged  for  her  costs  in  that  suit  ex- 
pended, whereof  the  said  E.  F.  is  convicted  as  appears  of  re- 
cord ;  and  that  you  have  &c. 

15.  Fi.  fa.  for  damages  recovered  in  action  of  waste. 

that  of  the  goods  and  chattels  of  C.  D.  in  your  baili- 


wick, you  cause  to  be  made  $ ,  which  A.  B.  lately  in  &c. 

recovered  against  the  said  C.  D.  in  an  action  against  him  for 
committing  waste  of  things  belonging  to  a  tenement  whereof  the 
said  C.  D.  was  tenant  for  life,  and  the  reversion  whereof  was 

in  the  said  A.  B.  the  said  sum  of  $ being  three  times 

the  amount  at  which  the  waste  was  assessed  ;  whereof  the  said 
C.  D.  is  convicted  as  appears  of  record ;  and  that  you  have  &c. 

16.  Fi.  fa.  for  costs  recovered  by  plaintiff  on  complaint  for  unlawful 
entry  or  detainer. 

that  of  &c.  you  cause  &c.  which  A.  B.  lately  in  &c.  hath 

recovered  against  the  said  C.  D.  for  his  costs  by  him  expended 
in  prosecuting  a  complaint  against  the  said  C.  D.  for  forcibly 
turning  him  out  of  possession  (or,  unlawfully  turning  him  out  of 
possession — or,  unlawfully  holding  him  out  of  possession)  of  a 
certain  tenement ;  whereof  the  said  C  D.  is  convicted  as  ap- 
pears of  record ;  and  that  you  have  &c. 

17,  Fi.  fa.  for  defendant,  for  costs,  or  for  costs  and  damages. 

you  cause  to  be  made  the  sum  of ,  which  C.  D. 


lately  in  &c.  hath  recovered  against  the  said  A.  B.  for  his  costs 

by  him  expended  about  his  defence  of  a  certain  action  of  

at  the  suit  of  the  said  A.  B.  {or,  if  in  ejectment,  a  certain  action 
of  trespass  and  ejectment  at  the  suit  of  John  Doe  lessee  of  the 
said  A.  B.) 

If  damages  he  recovered,  continue  as  follows :  and  also  five  dol- 
lars, which  the  said  C.  D.  in  the  same  court  hath  recovered 
against  the  said  A.  B.  because  of  his  failure  {or,  the  failure  of 
the  said  John  Doe)  to  prosecute  his  said  suit;  whereof  &c. 


Executions.  211 

18.  Fi.  fa.  after  dissolution  of  an  injunction. 

As  in  other  cases,  until  after  tlie  words  "  for  his  costs  &c.  in 

that  behalf  expended,"  and  then  say — "  and  also  $ ,  to 

which  the  said is  entitled  for  his  damages  by  reason  of 

the  said 's  retarding  the  execution  of  the  judgment  afore- 
said by  an  injunction  ;  whereof  the  said is  convict"  &c. 

Endorse — This  execution  is  not  to  be  levied  for  the  interest 

on  the  within  mentioned  sum  of  $ from  the day  of 

till  the day  of ;  the  damages  within  men- 
tioned being  in  lieu  thereof. 

19.  Fi.  fa.  upon  a  judgment  of  a  county  courts  affirming  a  judg- 
ment of  a  justice  of  the  peace. 

that  of  the  goods  and  chattels  of  S.  A.  and  B.  D.  m 

your  bailiwick,  you  cause  to  be  made  $20.  with  interest  there- 
on to  be  computed  after  the  rate  of  six  per  centum  per  annum 
from  the  2d  day  of  January  1821  till  the  6th  day  of  March  1822, 
and  S  1.04  cents,  which  W.  C.  lately  recovered  against  the  said 
S.  A.  by  the  judgment  of  a  justice  of  the  peace  for  the  said 
county  of  Henrico,  together  with  damages  after  the  rate  of  ten 
per  centum  per  annum  upon  the  whole  amount  of  the  said  judg- 
ment from  the  said  6th  day  of  March  1822  till  payment ;  also 
$  3.81  cents,  which  to  the  said  W.  C.  lately  in  our  court  of  our 
said  county  of  H.  were  adjudged  for  his  costs  by  him  expended 
by  reason  of  the  appeal  of  the  said  S.  A.  from  the  judgment 
aforesaid  ,*  upon  which  appeal  the  said  S.  A.  gave  the  said  B. 
D.  as  his  surety  for  the  payment  of  the  said  judgment,  and  all 
costs  and  damages,  in  case  the  same  should  be  affirmed  ;  and 
the  same,  in  our  said  county  court,  has  been  affirmed  ;  whereof 
the  said  S.  A.  and  B.  D.  are  convict  &c. 

Endorse — No  security  to  be  taken. 

20.  Fi.  fa.  upon  a  judgment  against  an  executor  or  administrator y 
to  he  levied  de  bonis. 

that  of  the  goods  and  chattels  in  your  bailiwick  which 

were  of deceased  at  the  time  of  his  death,  in  the  hands 

of executrix  of  his  last  will  and  testament  {or,  adminis- 
tratrix of  his  personal  estate)  to  be  administered,  you  cause  to 
be  made  the  sum  of  &c.  which ,  lately  in  &c.  hath  reco- 
vered against  the  said as  executrix  {or,  administratrix) 

as  aforesaid,  &c. 


212  Executions. 

21.  Fi.  fa.  returnable  to  rules. 

Instead  of  "And  that  you  have  &c."  say — "  And  how  you 
shall  have  executed  this  writ,  make  known  at  the  clerk's  office 
of  our  said  circuit  superior  court  at  the  rules  to  be  holden  for 

the  said  court  on  the  first  monday  in next.     And  have 

then  there  this  writ.     Witness  &c." 

22.  Endorsement  by  clerk  upon  execution  issued  on  a  judgment  for  a 
debt  contracted  before  the  first  of  August  1S37.  Sess.  Acts  1836-7, 
p.  46.  ch.  69.  <^  2. 

This  debt  was  contracted  before  the  first  day  of  August  eigh- 
teen hundred  and  thirty-seven. 

23-  Endorsement  by  sheriff  upon  fi.  fa.  when  it  is  delivered  to  him  to 
be  executed.    1  Rob.  Prac.  510. 

This  writ  was  received  by  me  on  the day  of . 

(Where  the  case  makes  it  proper,  add  :)  Another  like  writ  was 
delivered  against  the  same  person  on  the  same  day,  in  favour  of 
A.  B.     The  writ  of  A.  B.  was  the  first  delivered. 

24.  Affidavit  of  a  person  who  wishes  the  benefit  of  the  act  exempting  a 
portion  of  the  property  of  poor  debtors.  Sess.  Acts  1836-7,  p. 
46.  ch.  69.  <^  1. 

H.  county,  to  wit :  C.  D.  maketh  oath  and  saith  that  he  hath 
no  personal  property  except  what  is  exempted  by  an  act  of  as- 
sembly passed  March  30.  1837,  entitled  "an  act  exempting  a 
certain  portion  of  the  property  of  poor  debtors  from  execution 
and  other  liabilities,"  and  what  has  been  surrendered  to  the  she- 
rifl"  of  the  county  of  H.  to  satisfy  an  execution  against  him  at  the 
suit  of  A.  B. 

(Signed)     C.  D. 

Sworn  to  this day  of ,  before  me,  a  justice  of  the 

peace  for  the  county  of  H. 

E.  F. 

25.  Return  upon  fi.  fa.  prescribed  by  statute.     1  Rob.  Prac.  536. 

The  fi.  fa.  is  to  be  returned  according  to  the  form  given  in  I  R.  C. 
1819,  p.  526.  when  that  form  is  suited  to  the  case. 


Executions.  213 

26.  Return  of  fi.  fa.  which  is  levied  ujjon  goods  on  leased  premises 
whereon  rent  is  reserved  but  not  due.     1  Rob.  Prac.  524,  5. 

By  virtue  of  this  writ,  I  levied  the  same,  on  the day  of 

-,  upon  the  following  goods  and  chattels,  to  wit,  (here  spe- 


cify them)  upon  certain  premises  leased  by  A.  B.  to  the  within 
named  C.  D.  whereon  a  rent  of  $ a  year  was  reserved,  pay- 
able the day  of .     The  tenant  not  tendering  bond 

with  sureties  for  the  payment  of  the  rent  at  the  time  it  vi^ould 
become  due,  I  proceeded,  after  advertising  the  said  goods  and 

chattels  according  to  law,  to  sell  the  same  by  auction,  on  the 

day  of ,  at .     In  the  first  place  1  sold  so  much  as 

was  necessary  for  payment  of  the  rent,  on  a  credit  till  the  said 

day  of ,  the  purchasers  giving  good  security  for  the 

payment,  and  I  assigned  to  the  landlord  their  bonds,  to  wit, 

the  bond  of with his  surety,  for  $ ,  and  the 

bond  of with his  surety,  for  $ ,  as  will  appear 

by  the  landlord's  receipt  for  the  said  bonds,  which  is  herewith 
returned.     The  residue  of  the  said  goods  and  chattels  were  sold 

for  ready  money,  and  produced  $ ,  of  which  I  have  retained 

$ for  my  commissions,  and  the  balance  I  have  paid  to  the 

plaintiff,  as  will  appear  by  his  receipt  hereon.  An  account  of 
the  sales  is  returned  herewith,  as  the  law  directs. 

27.  Return  off.  fa.  which  is  levied  on  goods  on  leased  'premises 
whereon  rent  is  in  arrear.     1  Rob.  Prac.  524,  5. 

The  following  goods  and  chattels  of  the  defendant,  to  wit,  &c. 

being  upon  a  tenement  leased  to  him  by  A.  B.  for  $ a  year,* 

and  there  being  more  tJinn  one  yearns  rent  iii  arrear j  the  plaintiff  paid 

to  the  said  A.  B.  one  yearns  rent.     Whereupon  I  levied,  on  the 

day  of ,  upon  the  said  goods  and  chattels,  as  well  for  the 

money  so  paid  for  rent,  as  for  the  execution  money,  and  after 
publishing  notice  of  the  time  and  place  of  sale  according  to  law, 

I  proceeded,  on  the day  of ,  at ,  to  sell  the  said 

goods  and  chattels  by  auction,  for  the  best  price  that  could  be 
got  for  the  same.     An  account  of  the  sales  is  returned  herewith. 

The  amount  thereof  is  $ ,  of  which  I  have  retained  $ 

for  my  commissions,  and  applied  $ to  repay  the  plaintiff 

the  money  paid  by  him  for  rent.     The  balance  of  $ I  have 

paid  to  the  said  plaintiff  in  part  of  this  execution.  His  receipts 
for  the  money  paid  him  are  hereon  endorsed. 

*  If  there  be  less  than  one  year's  rent  in  arrear,  then,  in  lieu  of  the 

words  in  italics,  insert  the  following :  "  and  $ being  due  for  the 

rent  of  the  said  premises,  the  plaintiff  paid  to  the  said  A.  B.  the  rent  so 
due." 


214  Executions. 

28.  Return  of  the  levy  of  a  Ji.  fa.  where  rent  is  claimed  and  the  va- 
lidity of  the  claim  is  doubted.     1  Rob.  Prac.  525,  6. 

By  virtue  of  this  writ,  I  levied  the  same  on  the  following  goods 
and  chattels,  to  wit,  (here  specify  them.)     At  the  time  of  taking 

the  same,  A.  B.  claimed  that  there  should  be  paid  to  him  $ , 

which  he  alleged  to  be  due  him  for  the  rent  of  the  premises  upon 
which  the  said  goods  and  chattels  were  lying.  But  the  execu- 
tion creditor  insisting  that  the  said  A.  B.  was  entitled  to  nothing, 
I  have  as  yet  paid  nothing  on  account  of  rent.  After  publish- 
ing notice  of  the  time  and  place  of  sale  according  to  law,  I  pro- 
ceeded, on  the day  of ,  to  sell  by  auction  the  goods 

and  chattels  taken,  for  the  best  price  that  could  be  got  lor  the 
same.  An  account  of  the  sales  is  herewith  returned,  specifying 
the  several  articles  sold,  the  persons  to  whom  sold,  and  the 
prices  thereof.  The  whole  amount  of  sales  being  $ ,  I  re- 
tain $ for  my  commissions,  and  the  balance  of  $ I 

have  here  in  court,  so  that  the  court  may  dispose  of  the  same 
according  to  the  respective  rights  of  the  said  A.  B.  and  the  exe- 
cution creditor. 

29.  Indemnifying  bond.     1  Rob.  Prac.  530.  and  63  to  66. 

Know  all  men  by  these  presents  that  we  A.  B.  and  G.  H.  are 
held  and  firmly  bound  unto  E.  F.  high  sheriff  of  the  county  of 
H.  in  the  sum  of  $ ,  to  be  paid  to  the  said  E.  F.  his  execu- 
tors, administrators  or  assigns ;  for  the  payment  whereof  we 
bind  ourselves  jointly  and  severally,  and  each  of  us  binds  his 
heirs,  executors  and  administrators.  Sealed  with  our  seals  and 
dated  this  — : —  day  of in  the  5^ear ^. 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  above  named  A.  B.  upon  a  judgment  obtained  by  him  in  the 
circuit  superior  court  of  law  and  chancery  for  the  county  of  H. 
against  C.  D.  has  sued  out  a  writ  of  feri  facias  for  taking  the 
goods  and  chattels  of  the  said  C.  D.  to  satisfy  him  the  said  A. 

B.  the  sum  of  $ with  interest  thereon  from  the day  of 

till  paid,  and  $ costs,  which  writ  is  directed  to  the  sheriff 

of  the  said  county,  and  J.  K.  deputy  for  E.  F.  high  sheriff  of 
the  said  county,  has  levied  the  said  execution  on  the  following 
property,  to  wit,  (here  specify  it)  and  a  doubt  arising  whether 
the  right  of  the  said  property  is  in  the  said  C.  D.  or  not,  the  said 
sheriff"  has  applied  to  the  said  A.  B.  for  an  indemnifying  bond, 
according  to  the  statute  in  such  case :  Now  if  the  said  A.  B. 
and  6r.  H.  their  heirs,  executors  or  administrators,  shall  indem- 
nify the  said  E.  F.  the  sheriff  aforesaid,  against  all  damages 
which  he  may  sustain  in  consequence  of  the  seizure  or  sale  of 


Executions.  215 

the  property  on  which  the  said  execution  has  been  levied,  and 
moreover  shall  pay  and  satisfy  to  any  person  or  persons  claim- 
ing title  to  the  said  property  all  damages  which  such  person  or 
persons  may  sustain  in  consequence  of  such  seizure  or  sale,  and 
shall  warrant  and  defend  to  the  purchaser  or  purchasers  of  the 
property  such  interest  and  estate  therein  as  shall  be  sold  under 
the  execution,  then  the  above  obligation  is  to  be  void,  otherwise 
it  is  to  remain  in  full  force. 

30.  Return  where  plaintiff  refuses  to  give  indemnifying  hond,  and 
property  is  restored.     1  Rob.  Prac.  63. 

-  I  levied  this  execution  on  the  following  property,  to  wit, 
(here  specify  it)  and  a  doubt  arising  whether  the  right  of  the  said 
property  was  in  the  debtor  or  not,  I  gave  the  plaintiff  notice,  a 
reasonable  time  before  the  day  appointed  for  the  sale  thereof, 
that  an  indemnifying  bond  with  security  would  be  required  of 
him,  conditioned  according  to  the  statute  in  such  case,  which 
bond  the  plaintiff  refused  to  give,  and  on  the  day  appointed  for 
the  sale,  I  restored  the  property  to  the  party  from  whose  posses- 
sion it  was  taken. 

31.  Return  where  indemnifying  bond  is  given.     1  Rob.  Prac.  63. 

I  levied  this  execution  on  the  following  property,  to  wit,  (here 
specify  it)  and  a  doubt  arising  whether  the  right  of  the  said  pro- 
perty was  in  the  debtor  or  not,  I  applied  to  the  plaintiff  for  an 
indemnifying  bond  according  to  the  statute,  which  he  gave,  with 
C.  D.  his  surety,  and  the  same  is  herewith  returned.  (The  re- 
turn will  go  on  to  state  whatever  else  is  done ;  for  the  manner 
of  doing  which,  refer  to  such  of  the  other  returns  in  this  chap- 
ter as  may  be  suited  to  the  case.) 

32.  Bond  for  the  forthcoming  of  property  levied  on.     1  Rob.  Prac. 
529,  30.  and  591  to  602. 

Know  all  men  by  these  presents  that  we  C.  D.  and  G.  H.  are 

held  and  firmly  bound  unto  A.  B.  in  the  sum  of  $ ,  to  be 

paid  to  the  said  A.  B.  his  executors,  administrators  or  assigns  ; 
for  the  payment  whereof  we  bind  ourselves  jointly  and  several- 
ly, and  each  of  us  binds  his  heirs,  executors  and  administrators." 
Sealed  with  our  seals  and  dated  this day  of . 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  above  named  A.  B.  upon  a  judgment  obtained  by  him  in  the 
circuit  superior  court  of  law  and  chancery  for  the  county  of  H. 
against  C.  D.  and  E.  F.  has  sued  out  a  writ  oi'feri  facias  for 


216  Executions. 

taking  their  goods  and  chattels,  which  writ  is  directed  to  the 
sheriff"  of  the  said  county,  and  by  virtue  thereof  tlie  following 
goods  and  chattels,  to  wit,  (here  specify  them)  have  been  taken 
by  J.  K.  deputy  for  L.  M.  sheriff"  of  the  said  county,  to  satisfy 
the  said  execution,  the  amount  whereof  at  this  time,  including 

the  sheriff"'s  fee  and  commissions,  is  $ ;  and  the  said  C.  D. 

the  owner  of  the  goods  and  chattels  so  taken,  desires  that  the 
said  goods  and  chattels  should  be  suffered  to  remain  in  his  pos- 
session and  at  his  risk,  until  the  day  of  sale,  and  has  offered  to 
give  sufficient  security  to  the  sheriff"  to  have  the  same  forth- 
coming at  that  time  :    Now  if  the  said  C.  D.  shall  have  the  said 

goods  and  chattels  forthcoming  on  the day  of next, 

at ,  being  the   day  and  place  of  sale  appointed  by  the 

sheriff",  then  the  above  obhgation  is  to  be  void,  otherwise  it  is  to 
remain  in  full  force. 

33.  Return  of  Ji.  fa.  levied,  where  a  forthcoming  bond  is  taken,  and 
the  property,  or  some  part  of  it,  is  not  delivered.  1  Rob.  Prac. 
529,  30. 

By  virtue  of  this  writ,  the  following  goods  and  chattels,  to 
wit,  (here  specify  them)  were  taken  by  me  to  satisfy  the  same, 

and  I  appointed  the day  of ,  at ,  to  make  the 

sale.  C.  D.  the  owner  thereof,  wishing  the  said  goods  and  chat- 
tels to  remain  in  his  possession  until  the  day  of  sale,  I  took  a 
bond  from  him,  with  G.  H.  as  surety,  to  have  the  same  forth- 
coming at  that  time.  Notice  of  the  time  and  place  of  sale  was 
published  as  the  law  directs.  But  on  the  day  of  sale,*  only  a 
part  of  the  property  was  delivered,  to  wit,  (here  specify  the  part 
delivered.)  I  sold  by  auction  the  property  so  .delivered,  for  the 
best  price  that  could  be  got  for  the  same,  and  the  amount  of 
sales  is  only  $ ,  as  will  appear  by  the  account  of  sales  here- 
with returned.  $ is  retained  by  me  for  my  fee  and  com- 
mission, and  the  balance  of  $ has  been  paid  to  the  plain- 
tiff", and  his  receipt  taken  for  the  same  hereon.  The  forthcoming 
bond  is  herewith  returned. 

*  If  no  part  of  the  property  was  delivered,  after  the  words  "  on  the 
day  of  sale"  add  merely  "  no  part  of  the  property  was  delivered,  and  the 
forthcoming  bond  being  thereby  forfeited,  I  return  the  same  herewith." 

34.  Return  offi.  fa.  levied  on  slaves,  mules,  worh-oxen  and  horses. 

1  Rob.  Prac.  530,  31.  533.  536. 

By  virtue  of  this  writ,  I  levied  the  same,  on  the day  of 

— — — ,  upon  the  following  slaves,  mules,  work-oxen  and  horses, 


Executions.  217 

to  wit,  (here  name  the  slaves  and  describe  the  other  property) 

and  at  the term  of  the  county  court,  I  advertised  that  the 

same  would  be  sold  at  the  courthouse  on  the  first  day  of  the 
succeeding  term,  between  the  hours  of  twelve  o'clock  and  four 
o'clock  in  the  afternoon.     1  also  published  notice  of  the  time  and 

place  of  sale,  at ,  a  public  place  near  the  residence  of 

the  debtor,  more  than  ten  days  before  the  sale.     On  the  first  day 

of  the court,  within  the  hours  aforesaid,  sales  were  made 

of  the  property,  an  account  of  which  sales  is  herewith  returned. 
The  whole  amount  of  sales  is  $ ,  from  which  I  have  deduct- 
ed  $ for  my  commissions,  and   $ for  supporting  the 

slaves,  horses,  mules  and  oxen  from  the  time  they  were  levied 

on  until  they  were  sold,  and  the  balance  of  $ I  have  paid 

to  the  plaintiff",  as  appears  by  his  receipt  hereon. 

35.  Writing  of  debtor  authorizing  officer  to  dispense  with  the  provi- 
sions of  the  act  of  March  3.  1821.     1  Rob.  Prac.  530,  31. 

Certain  slaves,  mules,  work-oxen  and  horses  of  mine  having 

been  taken  by deputy  for sheriff"  of  H.  county, 

under  an  execution  from  the  court  of  the  said  county,  I  authorize 
the  officer  who  levied  the  said  execution  to  dispense  with  the 
provisions  of  the  act  of  March  3.  1821,  directing  sales  of  such 
property  to  be  made  at  the  courthouse  of  the  county,  on  the  first 
day  of  the  usual  term  of  the  court  of  the  county  succeeding 
that  on  which  it  is  advertised,  between  the  hours  of  twelve 
o'clock  and  four  o'clock  in  the  afternoon.  And  I  consent  that 
the  same  proceedings  may  be  had  as  if  the  said  act  had  never 
passed. 

36.  Return  of  officer,  when  act  of  March  3.  1821  is  dispensed  with. 

1  Rob.  Prac.  530,  31.  536. 

By  virtue  of  this  writ,  I  levied  the  same,  on  the day  of 

-,  upon  the  following  slaves,  mules,  work-oxen  and  horses, 


to  wit,  (here  name  the  slaves  and  describe  the  other  property.) 
On  {or,  before)  the  court-day  for  advertising  the  property,  the 
debtor,  in  writing,  authorized  me  to  dispense  with  the  provisions 
of  the  act  of  March  3.  1821.  Whereupon  I  published  notice, 
at  the  door  of  the  courthouse  of  the  county,  on  the  first  daj^  of 

court,  and  at ,  a  public  place  near  the  residence  of 

the  debtor,  ten  days  before  the  sale,  that  the  property  would  be 

sold  at ,  on  the day  of ,  between  the  hours 

of  ten  in  the  morning  and  four  in  the  afternoon,  and  the  property 
was  then  and  there  sold  by  auction,  for  the  best  price  that  could 
28 


218  Executions. 

be  got  for  the  same.  An  account  of  the  sales  is  herewith  re- 
turned.    The  whole  amount  &c.  (as  in  No.  34.) 

37.  Return  ivhere  money  is  received  without  any  levy.     1  Rob. 
Prac.  532. 

I  have  received  from  the  defendant  $ ,  the  amount  of 

this  execution,  of  which  I  have  retained  $ for  my  com- 
missions, and  the  balance  of  $ I  have  paid  to  the  plain- 
tiff, as  appears  by  his  receipt  hereon. 

38.  Return  where  money  is  received  after  the  return  day,  under  an 
execution  levied  -previously.     1  Rob.  Prac.  532. 

After  stating  the  levy,  the  talcing  the  forthcoming  bond,  if  any,  and 
the  advertisement,  -proceed  as  follows:  On  the  day  appointed  for  the 

sale,  but  before  the  same  v/as  commenced,  the  said paid 

me  $ ,  the  amount  of  the  execution,  and  kept  his  proper- 
ty (or,  his  property  was  restored  to  him.)  I  have  retained 
S for  my  commissions  &c.  (as  in  other  cases.) 

39.  Return  where  there  is  an  execution  against  the  goods  and  chattels 
of  the  person  to  whom  the  mo7iey  in  the  officer^s  hands  is  payable. 
1  Rob.  Prac.  511,  12.  533,  4. 

After  proceeding  as  in  other  cases,  as  far  as  will  shew  the  net 

amount  in  the  officer^ s  hands,  continue  as  follows :  On  the day 

of ,  a  writ  o^  fieri  facias  was  delivered  to  me  against  the 

goods  and  chattels  of  the  said  C.  D.  in  favour  of  ^.  B.  from  the 
court  of  H.  county,  for  &c.  in  consequence  whereof  I  now  bring 

into  court  the  said  sum  of  % ,  made  for  the  said  C.  D. 

under  this  execution,  so  that  the  court  may  dispose  of  the 
same. 

40,  Order  directing  money  made  under  execution  in  favour  of  a  per- 
son, to  be  paid  in  satisfaction  of  an  execution  against  him.  1  Rob. 
Prac.  534,  5. 

Upon  the  writ  o^  fieri  facias  sued  out  by  C.  D.  against  the 
goods  and  chattels  of  E.  F.  directed  to  the  sheriff  of  this  coun- 
ty, the  said  sheriff  this  day  made  a  return  to  the  following  ef- 
fect, to  wit,  (here  state  it.)  Whereupon,  the  court  being  satis- 
fied that  the  legal  and  equitable  right  to  the  money  made  by  the 
sheriff  is  in  the  said  C.  t).  and  the  execution  against  his  goods 
and  chattels,  in  the  hands  of  the  same  sheriff,  appearing  to  be 
for  more  than  the  money  made,  the  court  doth  direct  the  sheriff 


Executions.  219 

to  pay  over  the  said  money  in  satisfaction  of  the  said  execution 
against  the  goods  and  chattels  of  the  said  C.  D. 

41.  Return  where  a  surplus  of  the  proceeds  of  goods  sold  under  exe- 

cution remains  after  satisfying  it.     1  Rob.  Prac.  534,  5. 

After  proceeding  as  in  other  cases,  as  far  as  will  shew  the  amount 
of  sales,  continue  as  follows :  Out  of  the  proceeds  of  sale,  after 

retaining  $ for  my  fee  and  commissions,  and  $ 

for  supporting  the while  they  were  in  my  possession,  I 

have  satisfied  this  execution  by  paying  $ ,  the  amount 

thereof,  to  the  plaintiff,  as  appears  by  his  receipt  hereon ;  and 
the  surplus,  amounting  to  S ,  has  been  paid  to  the  defen- 
dant, as  will  appear  by  his  receipt. 

42.  Return  where  property,  of  which  the  sale  is  indemnified,  sells  for 
more  than  enough  to  satisfy  the  execution.     1  Rob.  Prac.  535. 

After  proceeding  as  far  as  will  shew  the  amount  of  sales,  continue 

a^  follows :  Out  of  the  proceeds  of  sale,  after  retaining  $ ; 

for  my  fee  and  commissions,  and  $ for  supporting  the 

while  they  were  in  my  possession,  1  have  satisfied  this 

execution  by  paying  $ ,  the  amount  thereof,  to  the  plain- 
tiff, as  appears  by  his  receipt  hereon.  After  making  such  satis- 
faction, there  remains  in  my  hands  a  surplus  of  S ,  which 

I  now  bring  into  court,  so  that  the  court  may  make  such  order 
for  the  disposition  thereof  until  the  question  about  the  title  to  the 
property  is  decided,  as  justice  and  the  rights  of  the  parties  shall 
require. 

43.  Return  where  the  goods  taken  remain  in  the  sheriff^s  hands 
until  an  injunction  is  obtaified  to  the  judgment.  1  Rob.  Prac. 
535,  6. 

After  stating  the  levy,  the  talcing  the  forthcoming  bond,  if  any,  and 
the  advertisement,  proceed  as  follows :  Afterwards,  and  before  any 
sale  was  made  under  this  execution,  the  defendant  obtained 
from  the  circuit  superior  court  of  law  and  chancery  for  the  coun- 
ty of  H.  an  injunction  to  the  judgment  on  which  the  execution 
issued,  and  the  goods  and  chattels  taken  were  thereupon  re- 
stored to  the  defendant. 


220  Executions. 

44.  Return  where  money  is  received  by  sheriff,  but  an  injunction  is 
obtaiiied  to  the  execution  before  payment  to  plaintiff.  1  Rob. 
Prac.  536. 

After  proceeding  as  in  other  cases,  as  far  as  will  shew  the 
amount  received,  continue  as  follows:  The  defendant  afterwards 
obtained  an  injunction  to  the  execution,  before  the  money  so  re- 
ceived was  paid  to  the  plaintiff,  and  thereupon  I  repaid  the  said 
money  to  the  defendant,  as  appears  by  his  receipt  hereon. 

45.  Return  where  goods  remain  in  sheriff^ s  hands  unsold.     1  Rob. 

Prac.  536,  7. 

After  stating  the  levy,  the  talcing  the  forthcoming  bond,  if  any,  and 
the  advertisement,  proceed  as  follows :  On  the  day  and  at  the  place 
appointed  for  the  sale,  I  attempted  to  sell  by  auction  the  goods 
and  chattels  taken,  but  there  were  no  buyers,  and  the  said 
goods  and  chattels  remain  in  my  hands  unsold. 

46.   Writ  of  venditioni  exponas.     1  Rob.  Prac.  536,  7. 

When  the  goods  remain  unsold  in  the  hands  of  the  officer  who  took 
them,  the  writ  of  venditioni  exponas  is  directed  to  such  officer,  and  is- 
sues in  the  form  prescribed  by  the  act  in  1  R.  C.  1819,  p.  533.  §  23. 

47.    Venditioni  exponas  to  a  late  sheriff.     1  Rob.  Prac.  537. 

The  commonwealth  of  Virginia  to  J.  H.  late  sheriff  of  F. 
county,  greeting:  We  command  you  that  you  expose  to  sale 
those  goods  and  chattels  of  J.  S.  to  the  value  of  $641.  &c. 
which,  according  to  our  command,  you  have  taken,  and  which 
remain  in  your  hands  unsold  for  want  of  buyers,  as  you  have 
certified  to  our  judge  of  &c.  to  satisfy  H.  C.  the  said  sum  of 
$  641.  &c.  whereof,  in  our  said  court,  he  hath  recovered  execu- 
tion against  the  said  J.  S.  by  virtue  of  a  judgment  in  the  said 
court ;  and  that  you  have  the  same  before  &c.  at  &c.  on  &c. 

48.  Rule  against  a  late  sheriff  to  shew  cause  why  a  distringas  should 
not  issue  to  compel  him  to  sell.     1  Rob.  Prac.  537. 

On  the  motion  of  J.  Lyle  by  his  attorney,  it  is  ordered  that  J. 
Lyon  late  sheriff  of  H.  county  be  summoned  to  appear  here  on 
the  first  day  of  the  next  term,  to  shew  cause,  if  any  he  can, 
why  a  distringas  should  not  issue  against  him,  to  compel  him  to 
sell  those  goods  and  chattels  of  J.  M.  and  J.  O.  which  were 
taken  by  B.   W.  his  deputy,  by  virtue  of  a  writ  o^  fieri  facias 


Executions,  221 

issued  out  of  this  court  by  the  said  Lyle  against  the  said  M.  and 
O.  and  which  remain  unsold,  as  appears  by  the  said  fV.^s  return 
on  the  said  execution. 

49.  Rule  made  absolute,  and  distringas  awarded.     1  Rob.  Prac. 

537. 

J.  L.  late  sheriff  of  H.  county  having  been  duly  summoned 
to  appear  here  on  this  day,  to  shew  cause,  if  any  he  could,  why 
a  distringas  should  not  issue  against  him,  to  compel  him  &c.  (as 
last)  the  said  /.  L.  late  sheriff  as  aforesaid  was  this  day  solemn- 
ly called,  but  failed  to  appear  to  shew  such  cause.  Whereupon, 
on  the  motion  of  the  said  J.  Lyle  by  his  attorney,  it  is  ordered 
that  the  rule  against  the  said  J.  L.  lale  sheriff  as  aforesaid  be 
made  absolute,  and  that  a  distringas  issue  against  him,  to  com- 
pel him  to  proceed  to  sell  the  goods  and  chattels  aforesaid. 

50.  fVrit  of  distringas  against  a  late  sheriff,  to  compel  him  to  sell. 

1  Rob.  Prac.  537. 

that  you  distrain  J.  L.  late  sheriff  of  the  said  county,  by 

all  his  lands  and  chattels,  so  that  neither  he  nor  any  for  him 
thereto  put  hands,  and  that  of  the  issues  thereof  to  us  you  an- 
swer, that  he  may  sell  those  goods  and  chattels  of  J.  M.  and  J. 
O.  which,  according  to  our  command,  he,  by  B.  W.  his  deputy, 
took  into  his  hands,  that  of  the  said  goods  and  chattels  he  might 
cause  to  be  made  kc.  (as  in  the^^eri  facias)  which  J.  L.  lately, 
by  the  judgment  of  our  &c.  recovered  against  the  said  J.  M.  and 
J.  O.  which  goods  and  chattels  remain  unsold,  as  the  said  J.  L. 
late  sheriff  as  aforesaid,  by  the  said  B.  W.  his  deputy,  has  cer- 
tified to  the  judge  of  our  said  court ;  and  that  he  may  have  the 
produce  of  the  said  sales,  or  suflBcient  thereof  &c. 

51.  Venditioni  exponas  for  the  sale  of  property  talcen  by  an  officer 

who  died  before  selling  it.*     1  Rob.  Prac.  537,  8. 

The  commonwealth  of  Virginia  to  the  coroner  of  the  county 
of  H.  greeting:  Whereas,  on  the  29ih  da}"^  of  March  last,  by 
our  writ  o^  fieri  facias  bearing  date  on  that  day,  we  commanded 
the  then  coroner  of  our  said  county,  that  of  the  goods  and  chat- 
tels of  S.  M.  deceased,  in  the  hands  of  W.  D.  sheriff  of  the  said 
county  and  administrator  of  the  said  S.  M.  deceased,  in  his  baili- 
wick, he  should  cause  to  be  made  S  245.98  cents,  with  interest 
thereon  to  be  computed  after  the  rate  of  six  per  centum  per  an- 
num from  the  third  day  of  June  1823  till  payment,  and  S  10.30 
cents,  which  L.  J.  in  our  &c.  had  recovered  against  the  said  W. 


222  Executions. 

D.  sheriff  and  administrator  as  aforesaid,  as  well  for  a  certain 
debt  and  interest  thereon,  as  for  his  costs  by  him  about  his  suit 
in  that  behalf  expended  ;  and  now  on  behalf  of  the  said  L.  J. 
we  are  informed  that  T.  A.  who,  at  the  date  of  our  said  writ  of 
fieri  facias,  was  coroner  of  our  said  county,  did,  by  virtue  of  our 
said  writ,  take  goods  and  chattels  of  the  said  8.  M.  deceased, 
in  the  hands  of  the  said  W.  D.  sheriff  as  aforesaid,  to  be  admi- 
nistered, and  afterwards  died  before  he  sold  those  goods  and  chat- 
tels :  Therefore  we  command  you  that  you  receive  the  said 
goods  and  chattels,  so  taken  under  execution,  from  the  represen- 
tatives of  the  said  T.  A.  deceased,  who  are  hereby  required  to 
deliver  the  same  to  you,  upon  your  producing  to  them  this  writ, 
and  executing  to  them  a  receipt  for  the  same;  and  that  you  ex- 
pose to  sale  the  said  goods  and  chattels,  to  satisfy  the  said  L.  J. 
the  said  sum  of  $245.98  cents,  with  interest  thereon  as  afore- 
said, and  the  said  $  10,30  cents.  And  how  you  shall  have  exe- 
cuted this  writ,  make  known  &c.     And  have  &c. 

*  In  this  case  there  was  no  return  upon  the  fieri  facias,  the  coroner  having  died 
before  he  made  a  return.  The  plaintiff  informed  the  clerk  that  the  coroner  had 
taken  property,  and  died  before  he  sold  it;  and  the  writ  oi venditioni  exponas  was 
issued  upon  this  information,  as  is  therein  stated. 

52.   Writ  of  elegit.     1  Rob.  Prac.  540. 

For  the  form  of  the  elegit,  see  1  R.  C.  1819,  p.  525. 

53.  Inqusition  under  elegit.     1  Rob.  Prac.  548. 

For  the  form  of  the  inquisition,  see  1  R.  C.  1819,  p.  526. 

54.  Capias  ad  satisfaciendum  returnable  to  court.    1  Rob.  Prac.  548. 

We  command  you  that  you  take  A.  B.  late  of ,  if  he 

be  found  within  your  bailiwick,  and  him  safely  keep,  so  that  you 
have  his  body  before  our  judge  of  our  circuit  superior  court  of 
law  and  chancery  for  the  county  of  i?.  at  the  courthouse,  on  the 
first  day  of  the  next  term  {or,  before  our  justices  of  our  county 

court  of  H.  at  the  courthouse,  on  the  first  day  of  the  next 

term)  to  satisfy  C.  D.  the  sum  of  % ,  which  the  said  C.  D.  hath 

recovered  against  him  for  debt,*  also  the  sum  of  $ ,  which  to 

the  said  C.  D.  in  the  same  court  were  adjudged  for  his  costs  in 
that  suit  expended,  whereof  the  said  A.  B.  is  convicted  as  ap- 
pears to  us  of  record.  And  have  then  there  this  writ.  Wit- 
ness &c. 

*  This  writ,  it  will  be  perceived,  is  upon  a  judgment  in  debt,  and  is 
merely  for  the  debt  and  costs.     The  change  proper  to  adapt  it  to  any 


Executions.  223 

other  case  can  readily  be  made  by  referring  to  the  forms  of  writs  ofjieri 
facias. 

55.  Capias  ad  satisfaciendum  returnable  to  rules.    1  Rob.  Prac.  548. 

and  him  safely  keep,  until  he  shall  'satisfy  &c.  where- 
of &c.  as  appears  to  us  of  record.  And  how  you  shall  have 
executed  this  writ,  make  known  at  the  clerk's  office  of  our  said 
circuit  superior  court,  at  the  rules  to  be  holden  for  the  said  court 

on  the  first  monday  in next.     And  have  then  there  this 

writ.     Witness  &c. 

56.  Ca.  sa.  after  return  of  no  effects  on  an  execution  issued  by  a  Jus- 

tice of  the  peace.     1  Rob.  Prac.  570. 

Whereas  A.  B.  by  the  judgment  of  a  justice  of  the  peace  for 
the  city  of  Richmond,  has  lately  recovered  against  C.  D.  $20. 
with  interest  thereon  to  be  computed  after  the  rate  of  six  per 

centum  per  annum  from  the day  of till  payment, 

and  also  his  costs  by  him  in  that  behalf  expended  ;  and  the  con- 
stable to  whom  execution  upon  the  said  judgment  was  directed 
by  a  justice  of  the  peace,  not  being  able  to  find  goods  and  chat- 
tels to  satisfy  the  same,  has  made  return  thereof  to  the  clerk  of 
our  court  of  hustings  for  the  said  city,  who  has  docketed  the 
same  according  to  law:  Therefore,  at  the  instance  of  the  said 
A.  B.  we  command  you  that  you  take  the  said  C.  D.  if  he  be 
found  within  your  bailiwick,  and  him  safely  keep,  so  that  you 
have  his  body  before  the  justices  of  our  said  court  of  hustings, 
at  &c.  on  &c.  to  satisfy  the  said  A.  B.  the  said  sum  of  $20. 

with  interest  thereon  as  aforesaid,  and  also  $ for  his  costs 

aforesaid.     And  have  then  there  this  writ.     Witness  &c. 

57.  Endorsement  by  creditor  where  execution  is  delivered  to  the  sheriff 
of  any  other  county  than  that  in  which  creditor  resides.  1  Rob. 
Prac.  550.  1  R.  C.  1819,  p.  544.  <^  54. 

I  name  A.  B.  in  the  county  of  C.  to  be  my  agent  for  the  pur- 
pose of  receiving  the  money  on  this  execution,  and  for  giving  to 
and  receiving  from  the  sheriff  any  notices  which  may  be  neces- 
sary relating  thereto. 

58.  Jailor'' s  notice  to  creditor  or  his  agent,  of  the  debtor^ s  imprison- 

ment.    1  Rob.  Prac.  550. 

To  mr.  C.  D.  {or,  mr.  A.  B.  agent  for  C.  D.) 
Sir, 

E.  F.  is  confined  in  the  jail  of  the  county  of  H.  as  a 


224  Executions. 

debtor,  by  virtue  of  a  writ  o^  capias  ad  satisfaciendum  issued  from 

the  court  of county  at  your  instance  and  in  your  name 

{or,  at.the  instance  of  the  said  C.  D.  and  in  his  name.)  1  now 
notify  you  of  the  imprisonment  of  the  said  E.  F.  and  that  you 
are  {or,  and  that  the  said  C.  D.  is)  held  responsible  to  the  jailor 
for  the  fees  chargeable  on  account  of  the  said  imprisonment. 
Given  under  my  hand  this day  of . 

59.  Return  of  ca.  sa.  on  which  defendant  is  arrested  and  committed 

to  jail.     1  Rob.  Prac.  550. 

By  virtue  of  this  writ  to  me  directed,  I  took  the  within  named 

A.  B.  on  the day  of ,  and  thereupon   committed  him 

to  the  jail  of  the  county  {or,  corporation)  where  I  keep  him  safe- 
ly, as  commanded. 

60.  Affidavit  by  sheriff  that  person  in  execution  has  escaped.     1  Rob. 

Prac.  550.     1  R.  C.  1819,  p.  548.  §  1. 

E.  F.  deputy  for  G.  H.  sheriff  of  the  county  of  H.  maketh 
oath  and  saith,  that  C.  D.  who  was  committed  to  the  prison  of 
the  said  county  in  execution  at  the  suit  of  A.  B.  by  virtue  of  a 

writ  of  capias  ad  satisfaciendum  from  the  court  of county, 

for  &c.  escaped  from  the  said  prison  on  the day  of . 

E.  F. 

Sworn  to  before  me,  a  justice  of  the  peace  in  and  for  the  said 
county  of  H.  this day  of . 

61.  Warrant  to  retake  person  in  execution  who  has  escaped  from  pri- 

son.    1  Rob.  Prac.  550.     1  R.  C.  1819,  p.  648.  ^  1. 

To  all  sheriffs,  mayors,  Serjeants,  bailiffs  and  constables  within 
the  commonwealth  of  Virginia.  Whereas  E.  F.  deputy  for  G. 
H.  sheriff  of  the  county  of  H.  has  this  day  made  oath  before 
me,  a  justice  of  the  peace  in  and  for  the  said  county,  that  C. 
D.  who  was  committed  to  the  prison  of  the  said  county  in  exe- 
cution at  the  suit  of  A.  B.  by  virtue  of  a  writ  of  capias  ad  satis- 
faciendum from  the  court  of county,  for  &c.  escaped  from 

the  said  prison  on  the day  of :  These  are  therefore, 

in  the  name  of  the  commonwealth,  to  command  you  and  every 
of  you,  in  your  respective  counties,  cities,  towns  and  precincts, 
to  seize  and  retake  the  said  C.  D.  and  him,  so  retaken,  forthwith 
to  convey  and  commit  to  the  prison  where  debtors  are  usually' 
kept  in  the  county  or  corporation  where  such  retaking  shall  be, 
there  to  be  kept  in  safe  custody  until  he  be  thence  discharged 
by  due  course  of  law,  delivering  this  warrant  to  the  sheriff  or 


Execvzions.  '  225 

other  officer  by  whom  such  prison  may  be  kept,  who  is  hereby 
required  to  obey  the  same,  and  to  receive  the  said  C.  D.  into 
his  safe  custody,  and  to  do  whatever  else  is  in  such  case  re- 
quired by  law.     Given  under  my  hand  and  seal  this day 

of . 

[seal]. 

62.  Note  given  by  jailor  to  the  person  who  delivers  to  him  the  prisoner 
taken  under  the  escape  warrant.  1  Rob.  Prac.  550.  1  R.  C. 
1819,  p.  548.  <§  1. 

I  have  this  day  received  into  my  custody,  from ,  one 

of  the  constables  of  the  county  of  C.  the  body  of  C.  D.  who  was 
committed  to  the  prison  of  the  county  of  H.  in  execution  at  the 
suit  of  A.  B.  by  virtue  of  a  writ  of  capias  ad  satisfaciendum  from 
the  court  of county,  for  &c.  and  escaped  from  the  said  pri- 
son, and  was  seized  and  retaken  in  this  county  by  the  said , 

by  virtue  of  an  escape  warrant.    Given  under  my  hand  this 

day  of . 

,  deputy  for sheriflf  and 

jailor  of  the  county  of  C 

63.  Return  of  the  execution  of  the  warrant  to  the  court  of  the  county 

from  which  the  prisoner  escaped. 

To  the  court  of  the  county  of  H. — On  the day  of , 

I  received  into  my  custody,  from  &c.  (as  last,  to  the  end.) 

64.  Bond  for  the  forthcoming  of  property  tendered  in  discharge  of 

the  body.     1  Rob.  Prac.  550,  51. 

Know  all  men  &c.  (like  the  obligation  for  the  forthcoming  of 
property  levied  on,  which  see  a7ite,  No.  32.) 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  above  named  A.  B.  upon  a  judgment  obtained  by  him  in 
the  circuit  superior  court  of  law  and  chancery  for  the  county  of 
H.  against  C.  D.  and  E.  F.  has  sued  out  a  writ  of  capias  ad  sa- 
tisfaciendum for  taking  their  bodies,  which  writ  is  directed  to  the 
sheriff  of  the  said  county,  and  by  virtue  thereof  J.  K.  deputy  for 
L.  M.  sheriff  of  the  said  county  has  taken  the  body  of  the  said 
C.  D.  to  satisfy  the  said  execution,  the  amount  whereof  at  this 

time,  including  the  sheriff's  fee  and  commissions,  is  $ ,  and 

the  said  C.  D.  has  tendered  to  the  officer  serving  the  said  writ 
the  following  property,  to  wit,  (here  specify  it)  which  property 
so  tendered  the  said  officer  has  received,  and  has  thereupon  dis- 
charged the  said  C.  D.  out  of  custody,  and  the  said  C.  D.  the 
29 


226  Executions. 

owner  of  the  property  so  tendered,  desires  that  the  said  property 
should  be  suffered  to  remain  in  his  possession  and  at  his  risk 
until  the  day  of  sale,  and  has  offered  to  give  sufficient  security 
to  the  sheriff  to  have  the  same  forthcoming  at  that  time  :  Now 
if  the  said  C.  D.  shall  have  the  property  aforesaid  forthcoming 

on  the day  of next,  at ,  being  the  day  and 

place  of  sale  appointed  by  the  sheriff,  then  the  above  obligation 
is  to  be  void,  otherwise  it  is  to  remain  in  full  force. 

65.  Return  of  ca.  sa.  where  debtor  tenders  'property  in  discharge  of 

his  body.     1  Rob.  Prac.  550.  551. 

This  writ  was  served,  the day  of ,  on  the  defen- 
dant, who  thereupon  tendered  to  me  a  slave  named ,  and 

the  following  other  personal  property,  to  wit,  (here  specify  it.) 
And  the  said  property  being  supposed  by  me  to  be  of  the  value 
of  the  debt  and  costs  for  which  the  execution  issued,  I  received 
the  same,  and  discharged  the  debtor  out  of  custody.  (The  re- 
sidue of  the  return  will  be  as  in  the  case  of  goods  taken  upon  a 
Ji-fa.) 

66.  Return  of  ca.  sa.  where  debtor  discharges  his  body  by  paying  the 

money.     1  Rob.  Prac.  551,  2. 

This  writ  was  served,  the day  of — ,  on  the  defen- 
dant, who  thereupon  paid  me  $ ,  the  amount  thereof,  inclu- 
ding my  fee  and  commissions.     Retaining  thereout  S for 

the  said  fee  and  commissions,  I  have  the  balance  of  $ ready 

to  pay  to  the  plaintiff  {or,  I  have  paid  the  balance  of  $ to 

the  plaintiff,  as  will  appear  by  his  receipt  hereon.) 

67.  Order  for  marking  and  laying  out  the  bounds  and  rules  of  the 
prison.     1  Rob.  Prac.  552.     1  R.  C.  1819,  p.  251.  <^  18. 

Ordered  that  the  surveyor  of  this  county  mark  and  lay  out 
not  exceeding  ten  acres  of  land  adjoining  to  the  county  prison, 
for  the  bounds  and  rules  of  the  same,  and  make  report  thereof 
to  the  court. 

68.  Bounds  and  rules  of  the  prison  adopted.  1  R.  C.  1819,  p.  251. 

<^  18. 

Pursuant  to  the  order  entered  at term,  the  surveyor  of 

this  county  this  day  made  the  following  report :  (Here  insert  it.) 
Whereupon  the  court  approves  the  said  report,  and  marks  and 
lays  out  the  bounds  and  rules  of  the  county  prison  in  the  man- 
ner mentioned  therein. 


Executions.  227 

69.  Prison  hounds  bond.     1  Rob.  Prac.  66.  552.     1  R.  C.  1819, 

p.  535.  §  30. 

Know  all  men  by  these  presents  that  we  C.  D.  and  E.  F.  are 

held  and  firmly  bound  unto  G.  H.  sheriff  of  the  county  of  if.  in 
the  sum  of ,  to  be  paid  to  the  said  G.  H.  his  executors,  ad- 
ministrators or  assigns ;  for  the  payment  whereof  we  bind  our- 
selves jointly  and  severally,  and  each  of  us  binds  his  heirs,  exe- 
cutors and  administrators.     Sealed  with  our  seals  and  dated  this 

day  of . 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  above  bound  C.  D.  has  been  taken  by  J.  K.  deputy  for  G.  H. 
sheriff  of  the  county  of  H.  by  virtue  of  a  writ  of  capias  ad  satis- 
faciendum issued   from  the  office  of  the  court  of county  at 

the  suit  of  A.  B.  for  &c.  and  has  been  committed  to  the  prison 
of  the  said  county  of  H.  where  he  still  remains  charged  in  exe- 
cution upon  the  writ  aforesaid  :  Now  if  the  said  C.  D.  shall  not 
depart  or  go  out  of  the  rules  or  bounds  of  the  said  prison,  and 
shall  render  his  body  to  prison  in  satisfaction  of  the  said  execu- 
tion at  or  before  the  expiration  of  one  year  from  the  date  hereof, 
then  the  above  obligation  is  to  be  void,  otherwise  it  is  to  remain 
in  full  force. 

70.  Return  where  prisonei'  is  admitted  to  the  bounds.    1  Rob.  Prac. 

66.  552.     1  R.  C.  1819,  p.  535.  -^  30. 

By  virtue  of  this  writ  to  me  directed,  I  took  the  within  named 

C.  D.  on  the day  of ,  and  committed  him  to  the 

county  prison.     Afterwards,  to  wit,  on  the day  of , 

he  entered  into  a  prison  bounds  bond,  with  E.  F.  his  surety,  in 

the  penalty  of  $ ,  and  from  that  time  had  the  privilege 

which  the  law  in  such  cases  allows. 

71.   Warrant  to  retake  prisoner  who  has  escaped  from  the  prison 
bounds.     1  R.  C.  1819,  p.  549.  <^  2. 

{As  in  No.  61.  to) by  virtue  of  a  writ  of  capias  ad  satis- 
faciendum from  the  court  of county,  for  &c.  and  obtained 

the  liberty  of  the  prison  rules  by  giving  bond  and  security  for 

the  same,  escaped  and  went  out  of  the  same  on  the day  of 

,  and  the  said  sheriff  has  applied  to  me  for  an  escape 

warrant  to  retake  the  said ,  according  to  the  directions  of 

the  act  of  assembly  :  These  are  therefore  &c.  (as  in  No.  61.  to 
the  end.) 


228  Executions. 

72.  Notice  to  creditor,  of  escape  from  the  priso7i  bounds.     1  R.  C. 
1819,  p.  549.  ^  2. 

To  A.  B. — Notice  is  hereby  given  you,  that  C.  D.  who  was 
committed  to  the  prison  of  the  county  of  H.  in  execution  at 
your  suit,  by  virtue  of  a  writ  of  capias  ad  satisfaciendum  from  the 

court  of county,  for  &c.  and  obtained  the  liberty  of  the 

prison  rules  by  giving  bond  and  security  for  the  same,  escaped 
and  went  out  of  the  same  on  this  day.  Given  under  my  hand 
this day  of . 

73.  Sheriff^ s  assignment  to  creditor,  of  prison  bounds  bond.     1  R. 
C.  1819,  p.  549.  <^  2. 

The  within  named  C.  D.  having  escaped  and  gone  out  of  the 
prison  rules,  I  hereby  assign  over  and  now  deliver  this  bond  to 
A.  B.  the  creditor  within  named,  as  the  act  of  assembly  in  such 
case  directs.     Given  under  my  hand  this day  of . 

74.  Warrant  to  take  person  who  failed  to  render  his  body  to  prison 
according  to  the  condition  of  prison  bounds  bond.  1  Rob.  Prac. 
552.     1  R.  G.  1819,  p.  535.  <^  30. 

{As  in  No.  61.  to) by  virtue  of  a  writ  of  capias  ad  satis- 
faciendum from  the  court  of county,  for  &c.  and  who,  on 

the day  of ,  obtained  the  liberty  of  the  prison  rules 

by  giving  bond  and  security  according  to  the  statute,  has  not, 
although  one  year  has  expired  since  the  date  of  the  said  bond, 
rendered  his  body  to  prison  according  to  the  condition  thereof; 
and  the  said  E.  F.  having  further  made  oath' before  me  that  the 
said  C.  D.  has  not  been  discharged  by  due  course  of  law : 
These  are  therefore  &c.  (as  in  No.  61.  to  the  end.) 

75.  Return  of  ca.  sa.  where  debtor  is  discharged  out  of  custody  upon 

obtaining  an  injunction.     1  Rob.  Prac.  552,  3. 

By  virtue  of  this  writ,  I  took  the  within  named  C.  D.  on  the 
day  of ,  and  thereupon  committed  him  to  the  jail 


of  the  county  {or,  corporation)  where  I  kept  him  safely  until  the 

day  of  ,  when  I  received  a  subpoena  in  chancery 

from  the  circuit  superior  court  of  law  and  chancery  for  the  coun- 
ty of  H.  in  the  name  of  the  said  C.  D.  against  the  within  named 
A.  B.  with  an  endorsement  thereon,  stating  that  it  was  to  injoin 
further  proceedings  on  the  judgment  on  which  this  writ  issued. 
Whereupon  I  discharged  the  said  C.  D.  from  custody. 


Executions.  229 

76.  Warrant  of  justice  directing  jailor  to  bring  insolvent  dehor 
before  him  or  some  other  justice.  1  Rob.  Prac.  553.  1  R.  C. 
1819,  p.  536.  -^  31.     Sess.  Acts  1833-4,  p.  77.  ch.  66.  -^  1. 

To  the  jailor  or  keeper  of  the  prison  of  the  county  of  H. — 
Whereas  information  has  been  given  to  me,  a  justice  of  the 
peace  for  the  said  county  of  H.  that  C.  D.  has  been  committed 
to  the  jail  of  the  said  county,  charged  in  execution  by  virtue  of 
a  judgment  {or,  by  virtue  of  a  capias  ad  satisfaciendum  upon  a 
judgment)  obtained  by  A.  B.  against  the  said  C.  D.  in  a  suit  in 
the  circuit  superior  court  of  law  and  chancery  for  the  said 
county  of  H.  {or,  in  the  county  court  of  H.)  and  that  the  said 
C.  D.  is  insolvent,  and  desires  to  be  relieved  from  his  imprison- 
ment: These  are  therefore,  in  the  name  of  the  commonwealth, 
to  command  you  to  bring  the  body  of  the  said  C.  D.  before  me, 
or  some  other  justice  of  the  peace  for  the  said  county  of  H.  at 

the  courthouse  thereof,  on  the  day  of  -,  together 

with  a  list  of  the  several  executions  with  which  the  said  C.  D. 
stands  charged  in  the  said  jail.  And  have  then  there  this  pre- 
cept.    Given  under  my  hand  and  seal  this day  of . 

77.  Notice  that  person  intends  to  laTce  the  oath  of  an  insolvent  debtor. 
1  Rob.  Prac.  553.  1  R.  C.  1819,  p.  536.  Sess.  Acts  1827-S, 
p.  25.  ch.  32.  -^  1. 

To  mr.  A.  B. — Having  been  committed  to  the  jail  of  the 
county  of  H.  charged  in  execution  by  virtue  of  a  judgment  {or, 
by  virtue  of  a  capias  ad  satisfaciendum  upon  a  judgment)  ob- 
tained by  you  against  me,  in  a  suit  in  the  circuit  superior 
court  of  law  and  chancer}'  for  the  said  county  of  H.  {or,  in 
the  county  court  of  H.)  and  being  insolvent,  and  desiring  to  be 
relieved  from  my  imprisonment,  I  now  give  you  notice  that  I 
am  to  be  brought  before  a  justice  of  the  peace  for  the  county  of 
H.  at  the  courthouse  thereof,  on  the  day  of  ,  be- 
tween the  hours  of and ,  and  intend  then  and  there 

to  take  the  oath  of  an  insolvent  debtor.  Subjoined  hereto  is  a 
copy  of  the  schedule  which  I  mean  to  offer. 

78.  Schedule  of  insolvent.     1  R.  C.  1819,  p.  536.     Sess.  Acts 
1836-7,  p.  46,  7.  ch.  69.  <^  1.  3. 

The  following  is  a  schedule  of  the  whole  estate  of  C.  D. 

Having,  by  virtue  of  the  first  and  third  sections  of  an  act  of 
assembly  passed  the  30th  of  March  1837,  entitled  "  an  act  ex- 
empting a  certain  portion  of  the  property  of  poor  debtors  from 
execution  and  other  liabilities,"  set  apart  the  following  proper- 


230  Executions. 

ty,  to  wit,  (here  specify  it,)  the  residue  of  my  estate  is  as  fol- 
lows :  (here  specify  it.)     Given  under  my  hand  this day 

of .  CD. 

79.  List  of  executions.     1  R.  C.  1819,  p.  536.  <^  31. 

The  following  is  a  list  of  the  several  executions  with  which 
C.  D.  stands  charged  in  the  jail  of  the  county  of  H. 

A  capias  ad  satisfaciendum  from  the  circuit  superior  court  of 
law  and  chancery  for  the  county  of  iJ.  in  favour  of  ^.  B.  against 

the  said  C.  D.  for  $ ,  with  interest  thereon  from  the 

day  of till  paid,  and  the  costs. 

And  a  capias  &c.  (specifying  any  other  which  there  may  be.) 
Given  under  my  hand  this day  of' 


•,  deputy  for sheriff  and  jailor 


of  the  county  of  H. 
80.   Oath  of  insolvent  debtor. 

The  prisoner  takes  the  comprehensive  and  solemn  oath  prescribed  by 
the  act  in  1  R.  C.  1819,  p.  536.  §  31. 

81.   Conveyance  of  the  real  estate  mentioned  in  the  schedule.     1  Rob. 
Prac.  553.     1  R.  C.  1819,  p.  537.  ^  32. 

This  indenture  made  this day  of ,  between   C. 

D.  of  the  county  of  H.  of  the  one  part,  and  E.  F.  sheriff' of  the 
said  county  of  the  other  part :  Whereas  the  said  C.  D.  has  been 
committed  to  the  jail  of  the  county  of  H.  charged  in  execution 
by  virtue  of  a  capias  ad  satisfaciendum  obtained  by  A.  B.  against 
the  said  C.  D.  upon  a  judgment  in  the  circuit  superior  court  of 

law  and  chancery  for  the  county  of  H.  for  $ ,  with  interest 

thereon  from  the day  of till  paid,  and  the  costs,  and  the 

said  C.  D.  being  insolvent,  and  desiring  to  be  relieved  from  his 
imprisonment,  has,  by  virtue  of  a  warrant  issued  for  that  pur- 
pose, been  brought  before  a  justice  of  the  peace  for  the  said 
county  of  H.  at  the  courthouse  thereof,  on  this  day,  and  has 
subscribed  and  delivered  in  a  schedule  of  his  estate,  which 
schedule  contains  the  following  real  estate,  to  wit,  (here  de- 
scribe it.)  Now  therefore  this  indenture  witnesseth,  that  the 
said  C.  t).  pursuant  to  the  act  of  assembly  in  such  case  made, 
and  for  the  consideration  of  five  dollars  to  him  in  hand  paid  by 
the  said  E.  F.  before  the  sealing  and  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  has  granted,  bar- 
gained and  sold,  and  by  these  presents  doth  grant,  bargain,  sell 
and  convey  unto  the  said  E.  F.  sheriff"  as  aforesaid,  all  the  real 


Executions.  231 

estate  herein  before  mentioned  and  described,  to  be  by  him  dis" 
posed  of  according  to  law.  In  witness  whereof  the  said  C.  D. 
has  hereunto  set  his  hand  and  affixed  his  seal  on  the  day  and 
year  herein  first  mentioned. 

Signed,  sealed  and  delivered  >  [seal], 

in  the  presence  of  5 

82.  Warrant  for  insolvent's  discharge.     1  Rob.  Prac.  553.  1  R.  C. 

1819,  p.  537.  "^  33. 

To  the  jailor  or  keeper  of  the  prison  of  the  county  of  H. 

Whereas,  in  obedience  to  a  warrant  issued  for  that  purpose, 
you  brought  C  1).  before  me,  a  justice  of  the  peace  for  the 
said  county,  at  the  courthouse  thereof,  on  this  day,  with  a  list  of 
the  several  executions  with  which  he  stood  charged  in  your  jail, 
and  by  the  said  list  it  appeared  that  the  only  execution  with 
which  the  said  C.  D.  stood  charged  in  the  said  jail  was  a  capias 
ad  satisfaciendum  from  the  circuit  superior  court  of  law  and  chan- 
cery for  the  county  of  H.  in  favour  of  A.  B.  against  the  said  C. 

D.  for  $ ,  with  interest  thereon  from  the day  of- 

till  paid,  and  the  costs  :  And  whereas  it  was  shewn  to  me  that 
the  said  C.  D.  gave  to  the  said  A.  B.  reasonable  notice  of  his  in- 
tention to  take  the  oath  of  an  insolvent  debtor,  and  of  the  time 
and  place  thereof,  and  served  with  the  said  notice  a  copy  of  the 
schedule  which  he  meant  to  offer ;  and  the  said  C.  D.  upon 
coming  before  me  at  the  said  time  and  place,  has  subscribed 
and  delivered  in  a  schedule  of  his  estate,  and  taken  the  oath 
prescribed  by  the  thirty-first  section  of  the  act  entitled  "  an  act 
to  reduce  into  one  act  the  several  acts  concerning  executions 
and  for  the  relief  of  insolvent  debtors,"  and  done  all  that  the 
said  act  requires  to  entitle  him  to  be  discharged  :  These  are 
therefore  to  command  you,  in  the  name  of  the  commonwealth, 
forthwith  to  discharge  the  said  C.  D.  if  he  be  detained  in  your 
custody  for  no  other  cause  than  the  execution  aforesaid.  And 
for  so  doing,  this  shall  be  your  warrant.     Given  under  ray  hand 

and  seal  this day  of . 

[seal]. 

83.  Return  of  ca.  sa.  where  debtor  is  discharged  by  taking  oath  of 
insolvency.     1  Rob.  Prac.  553.  1  R.  C.  1819,  p.  536,  7. 

By  virtue  of  this  writ,  I  took  the  within  named  C.  D.  on  the 
day  of ,  and  thereupon  committed  him  to  the  jail 


of  the  county,  where  I  kept  him   safely  until  the day  of 

,  when  he  took  the  oath  of  an  insolvent  debtor  before 

,  a  justice  of  the  peace  for  the  said  county,  and  was  dis- 


232'  Executions, 

charged  by  his  warrant.     The  schedule  is  herewith  returned. 

{Or,  The  schedule  is  returned  to  the  office  of  the  court  of 

county,  from  which  office  an  execution  issued  against  the  said 
C.  D.  which  came  to  my  hands  before  this.) 

84.  Entry  where  oath  of  insolvency  is  taken  in  court.     1  Rob.  Prac. 

553.  1  R.  C.  1819,  p.  536,  7. 

The  jailor  of  this  county  brought  before  the  court  T.  R.  and 
certified  that  he  stood  charged  in  the  said  jail  by  virtue  of  a  writ 
o^  capias  ad  satisfaciendum  sued  out  of  the  court  o^  Hanover  coun- 
ty by  J.  D.  against  him,  for  $ ,  with  interest  thereon  from 

the day  of till  paid,  and  the  costs,  and  for  no  other 

cause.  Whereupon,  it  appearing  that  the  said  T.  R.  has  given 
to  the  said  J.  D.  reasonable  notice  of  his  intention  to  take  the 
oath  of  an  insolvent  debtor  before  this  court  at  this  time,  and 
served  with  the  said  notice  a  copy  of  the  schedule  which  he 
meant  to  offer,  the  said  T.  jR.  upon  coming  before  the  court,  sub- 
scribed and  delivered  in  a  schedule  of  his  estate,  and  took  the 
oath  prescribed  by  the  thirty-first  section  of  the  act  entitled  *'  an 
act  to  reduce  into  one  act  the  several  acts  concerning  executions 
and  for  the  relief  of  insolvent  debtors,"  and  did  all  that  the  said 
act  requires  to  entitle  him  to  be  discharged  ;  and  it  is  therefore 
ordered  that  he  be  discharged  from  custody. 

85.  Summons  against  a  person  stated  to  he  indebted  to,  or  to  have  es- 

tate of  insolvent.     1  R.  C.  1819,  p.  538.  §  35. 

Whereas  C.  J.  has  lately  been  discharged  as  an  insolvent 
debtor  at  the  suit  of  A.  B.  and  the  schedule  subscribed  and  de- 
livered in  by  the  said  C.  J.  mentions  the  sum  of  S  25.  to  be  due 
him  from  J.  B.  S.  {or,  mentions  that  the  following  goods  and 
chattels  belonging  to  him,  to  wit,  &c.  are  in  the  possession  of  J. 
B.  S.)  as  appears  by  the  said  schedule,  remaining  with  the  clerk 
of  our  circuit  superior  court  of  law  and  chancery  for  the  county 
of  H. — Therefore  we  command  you  that  you  summon  the  said 
J.  B.  S.  to  appear  before  the  judge  of  our  said  court,  at  the 
courthouse,  on  the  first  day  of  the  next  term,  and  then  and  there 
declare  on  oath  whether  the  said  money,  or  any  part  thereof,  be 
really  due  from  him  to  the  said  C.  J.  {or^  whether  such  goods 
and  chattels  be  really  in  his  possession,  and  are  the  property  of 
the  said  C.  J.)     And  have  &c. 

{Endorse)  Issued  at  the  instance  of  A.  B.  the  creditor  of  the 
within  named  C.  J. 


Executions.  233 

86.  Judgment  by  default  against  a  person  stated  to  be  indebted  to  in- 

solvent.    1  R.  C.  1819,  p.  538.  §  35. 

J.  L.  who  has  been  summoned  to  appear  here  on  this  day, 
and  declare  on  oath  whether  the  sum  of  $4.52  cents,  with  which 
he  is  charged  in  the  schedule  of  J.  B.  an  insolvent  debtor,  filed 
in  the  office  of  this  court,  be  really  due  to  the  said  J.  B.  was 
this  day  solemnly  called,  but  failed  to  attend  according  to  the 
summons,  or  to  shew  good  cause  for  his  nonattendance  :  There- 
fore it  is  considered  by  the  court  that  W.  P.  sheriff  of  this  coun- 
ty, recover  against  the  said  J.  L.  the  said  sum  of  $4;.52  cents, 
together  vi^ith  the  costs  in  this  behalf  expended,  a  lawyer's  fee 
excepted.     {Or — the  said  sum  of  $4.52  cents,  without  costs.) 

Note.  Whenever  judgment  shall  be  rendered  against  any  person 
named  as  a  debtor  in  the  schedule  of  an  insolvent,  for  the  money  or 
goods  therein  mentioned,  or  any  part  thereof,  either  by  default  or  upon 
confession,  the  court  may,  in  its  discretion,  allow  costs  to  the  creditor 
(except  an  attorney's  fee)  or  enter  judgment  for  the  money  or  goods 
without  costs,  as  in  the  opinion  of  such  court  the  justice  of  the  case  may 
require.     Sess.  Acts  1833-4,  p.  77.  ch.  66.  §  2. 

87.  New  summons  awarded  against  a  person  stated  by  an  insolvent 

to  be  his  debtor. 

The  summons  issued  by  the  clerk,  at  the  instance  of  L.  S. 
against  jR.  A.  named  as  a  debtor  in  the  schedule  of  J.  B.  an  in- 
solvent debtor,  filed  in  the  office  of  this  court,  being  returned 
not  found,  on  the  motion  of  the  said  L.  S.  by  his  attorney,  a 
new  summons  is  awarded  against  the  said  R.  A.  returnable 
here  on  the  first  day  of  the  next  term. 

88.  Defendant  appeared  according  to  summons  awarded  in  last  case, 

and  summons  dismissed. 

The  summons  awarded  at  the  last  term,  on  the  motion  of  L. 
S.,  against  R.  A.  who  was  named  as  debtor  in  the  schedule  of 
J.  B.  an  insolvent  debtor,  filed  in  the  office  of  this  court,  being 
returned  executed,  this  day  came  as  well  the  said  L.  S.  by  his 
attorney,  as  the  said  R.  A.  in  his  proper  person,  who,  being 
sworn,  declared  that  neither  the  sum  of  S5.77J  cents,  with 
which  he  is  charged  in  the  said  schedule,  nor  any  part  thereof, 
is  really  due  from  him  to  the  said  J.  B. — Therefore  it  is  ordered 
that  the  summons  aforesaid  be  dismissed. 
30 


234  Executions. 

89,  Ca.  sa.  directed  to  issue  against  a  person  who  has  been  dis- 
charged as  an  insolvent  debtor.     1  Rob.  Prac.  560,  61. 

C.  D.  having  delivered  in  a  schedule,  taken  the  oath  of  insol- 
vency, and  been  discharged  as  an  insolvent  debtor,  since  the 
judgment  obtained  against  him  in  this  court  by  A.  B.,  the  said 
A.  B.  this  day  moved  the  court  to  direct  a  writ  of  capias  ad 
satisfaciendum  to  issue  on  his  said  judgment ;  and  for  reasons  ap- 
pearing to  the  court,  the  same  is  directed  accordingly. 

90.  Fi.  fa.  awarded  against  the  goods  acquired  by  a  person  after 
taking  the  oath  of  insolvency.     1  Rob.  Prac.  660,  61. 

C.  D.  having  delivered  in  a  schedule,  taken  the  oath  of  insol- 
vency, and  been  discharged  as  an  insolvent  debtor,  under  an 
execution  issued  from  this  court  at  the  suit  of  A.  B.,  the  said 
A.  B.  by  his  attorney  this  day  moved  the  court  to  award  exe- 
cution against  the  goods  and  chattels  acquired  by  the  said  C.  D. 
since  taking  the  said  oath ;  and  it  appearing  that  the  said  C.  D. 
has  had  ten  days  previous  notice  of  this  motion,  he  was  solemn- 
ly called,  but  came  not :  Whereupon  the  court  doth  award  exe- 
cution according  to  the  said  motion. 

91.  Rettirn  of  ca.  sa.  where  debtor  is  discharged  for  nonpayment  of 
jail  fees.     1  Rob.  Prac.  661. 

After  stating  the  arrest  and  commitment,  proceed  as  follows :  On 

the day  of T  notified  the  creditor,  in  writing,  of 

the  imprisonment  of  his  debtor ;  and  at  the  termination  of  sixty 

days,  I  demanded  of  him  $ ,  the  amount  of  my  account 

for  the  maintenance  of  the  debtor.  The  creditor  failing  to  make 
payment  of  the  said  account,  1  obtained  a  judgment  against  him 
for  the  amount  thereof,  upon  ten  days  notice,  by  motion  to  the 
court  of  my  county.  Return  was  made  on  two  several  execu- 
tions, by  the  officer  to  whom  they  were  directed,  that  he  could 
not  make  the  said  amount ;  and  I  thereupon  discharged  the 
debtor  out  of  custody. 

If  the  ca.  sa.  has  previously  been  returned,  it  will  be  proper  to 
embrace  the  substance  of  this  return  in  a  separate  paper,  commencing 
as  follows : 

C.  D.  having  been  confined  as  a  debtor  in  the  jail  of  my  coun- 
ty, by  virtue  of  a  writ  of  capias  ad  satisfaciendum  issued  from 
&c.  wherein  A.  B.  was  the  creditor,  the  said  creditor  was,  on 

the day  of ,  notified  by  me  in  writing,  of  &c.  (as 

before.) 


Executions.  235 

92.  Return  of  ca.  sa.  where  debtor  was  discharged  by  tendering 
•property  which  proved  to  be  under  itwumbrance.  1  Rob.  Prac. 
562. 

After  stating  the  service  of  the  ca.  sa.,  the  tender  of  property,  and 
the  discharge  of  the  debtor  out  of  custody,  proceed  as  follows :  The 
property  so  tendered  proved  to  be  under  an  incumbrance,  by 

deed  of  trust  executed  by  the  said to  — for  the 

benefit  of ,  and  I  could  not  sell  it. 

93.  Endorsement  on  new  execution,  to  shew  that  property  had  been 
tendered  under  a  ca.  sa.  which  was  incumbered.  1  Rob.  Prac. 
562. 

When  a  former  writ  of  capias  ad  satisfaciendum  was  served  in 
this  case  upon  the  debtor,  he  tendered  to  the  officer  serving  the 
same,  personal  property,  and  was  thereupon  discharged  out  of 
custody.  The  return  upon  that  writ  shews  that  the  property 
so  tendered  proved  to  be  under  an  incumbrance,  and  could  not 
be  sold. 

94.  Debtor  dying  in  execution,  new  execution  against  his  goods  and 

chattels.     1  Rob.  Prac.  560. 

The   commonwealth    &c.      Whereas,    on   the   day  of 

by  a  writ  of  capias  ad  satisfaciendum  sued  out  of  the 


circuit  superior  court  of  law  and  chancery  for  the  county  of  H. 
to  you  directed,  we  commanded  you  that  you  should  take  C.  D. 
and  him  safely  keep  until  he  should  satisfy  A.  B.  S  100.  with 
interest  thereon  to  be  computed  after  the  rate  of  six  per  centum 

per  annum  from  the  day  of till  payment,  which 

he  in  our  said  court  had  recovered  as  well  for  a  certain  debt  as 
for  interest  thereon,  and  also  a  sum  adjudged  to  him  the  said  A. 
B.  for  the  costs  by  him  about  his  suit  expended  ;  and  after- 
wards, by  your  return  on  the  said  writ,  you  made  known  that 
you  had  taken  the  said  C.  D.  and  committed  him  to  the  county 
prison :  and  now  we  are  informed  that  the  said  C.  D.  being  so 
in  prison,  charged  in  execution,  happened  to  die  in  execution; 
and  the  said  A.  B.  has  applied  for  new  execution  against  the 
goods  and  chattels  of  the  said  deceased  :  Therefore  we  com- 
mand you  that  of  the  goods  and  chattels  of  the  said  C.  D.  de- 
ceased, in  your  bailiwick,  you  cause  to  be  made  the  said  S  100. 
with  interest  thereon  as  aforesaid,  and  $ for  the  costs  afore- 
said ;  and  that  you  have  the  said  sums  of  money  before  &c.  at 
&c.  on  &c.  to  render  to  the  said  A.  B.  of  the  debt,  interest  and 
costs  aforesaid.     And  have  &c. 


236  Executions. 

Note.  Impey,  in  his  Practice,  p.  337.  says :  "  If  a  man  died  in  ex- 
ecution, formerly  his  executors  were  no  farther  chargeable ;  but  now, 
by  Stat.  21  Jac.  1.  ch.  24.  though  he  die  in  execution,  yet  the  plaintiff 
may  have  an  execution  against  his  lands,  goods  and  chattels.  But  the 
judgment  must  be  revived  by  a  scire  facias.^'  It  is  to  be  observed  that 
the  english  statute  gives  to  the  creditor  or  creditors  execution  against 
the  lands  and  tenements,  goods  and  chattels,  or  any  of  them,  of  the  per- 
son so  deceased,  "  in  sucJt  manner  and  form,  to  all  intents  and  purposes, 
as  he  or  they  or  any  of  them  might  have  had  by  the  laws  and  statutes  of 
this  realm,  if  such  person  so  deceased  had  never  been  taken  or  charged  in 
execution."  And  if  the  debtor  had  never  been  taken  in  execution,  there 
could  not,  after  his  death,  be  execution  against  his  lands  and  tenements, 
goods  and  chattels,  without  a  scire  facias.  Such  would  be  the  rule, 
although  a  capias  ad  satisfaciendum  might  have  been  issued  and  never 
served.  Upon  comparing  the  two  statutes,  it  will  be  found  that  the  Vir- 
ginia act  omits  the  words  "  in  such  manner  and  form,"  and  the  follow- 
ing words  preceding  the  proviso.  It  enacts,  in  very  general  and  unqua- 
lified language,  that  the  creditor  may,  "  after  the  death  of  the  person  so 
dying  in  execution,  lawfully  sue  forth  and  have  new  execution  against 
the  lands  and  tenements,  goods  and  chattels,  or  any  of  them,  of  the  per- 
son so  deceased."  Literally  construed,  it  seems  not  to  require  a  notice 
of  any  kind  before  issuing  execution.  But  it  may  be  advisable,  if  the 
creditor  proceeds  without  a  scire  facias,  that  there  should  be  a  motion 
to  the  court  for  the  execution,  and  notice  of  the  motion,  wherever  that 
is  practicable. 

95.  Debtor  dying  in  execution,  new  execution  against  his  lands  and 
tenements.     1  Rob.  Prac.  560. 

Whereas  A.  B.  at  a  circuit  superior  court  of  law  and  chan- 
cery for  the  county  of  H.  held  before  the  judge  of  the  said  court 

on  the day  of ,  recovered  against- C  D.  the  sum  of 

$  100.  with  interest  thereon  to  be  computed  after  the  rate  of  six 
per  centum  per  annum  from  the  day  of till  pay- 
ment, as  well  for  a  certain  debt  as  for  interest  thereon,  and  also 
recovered  against  the  said  C.  D.  his  costs  in  that  suit  expended, 
whereof  the  said  C.  D.  is  convicted  as  appears  to  us  of  record  : 
and  whereas  a  writ  of  capias  ad  satisfaciendum  was  sued  out 

upon  the  said  judgment,  directed  to  the  sheriff  of county, 

and  the  said  sheriff,  by  his  return  on  the  said  writ,  made  known 
that  he  had  taken  the  said  C.  D.  and  committed  him  to  the 
county  prison  :  and  now  we  are  informed  that  the  said  C.  D. 
being  so  in  prison,  charged  in  execution,  happened  to  die  in  exe- 
cution ;  and  the  said  A.  B.  has  applied  for  new  execution  against 
the  lands  and  tenements  of  the  said  deceased  :  Therefore  we 
command  you  that  you  cause  to  be  delivered,  by  reasonable 
price  and  extent,  a  moiety  of  all  the  lands  and  tenements,  in 
your  bailiwick,  whereof  the  said  C.  D.  was  seized  at  the  day  of 


Executions.  237 

obtaining  the  said  judgment,  or  at  any  time  afterwards,  except 
only  such  lands  and  tenements  of  the  said  C.  D.  as  have,  at  any 
time  since  the  said  judgment,  been  sold  by  him  boriajide  for  the 
payment  of  any  of  his  creditors  at  whose  suit  he  was  in  execu- 
tion, and  the  money  paid,  or  secured  to  be  paid,  to  any  such  cre- 
ditors, with  their  privity,  in  discharge  of  his  or  their  debts,  or 
some  part  thereof;  to  have  and  to  hold  the  said  moiety  to  him 
the  said  A.  B.  as  his  freehold,  to  him  and  his  assigns,  until  he 

shall  have  levied  thereof  the  debt  and  interest,  and  S the 

costs  aforesaid  ;  and  that  you  certify  our  judge  of  our  said  court, 
under  your  own  seal  and  the  seals  of  those  by  whose  oath  you 
shall  make  this  extent  and  appraisement,  how  you  execute  this 
writ,  at  the  courthouse  of  our  said  county,  on  the  first  day  of 
the  next  term.     And  have  &c. 

See  the  note  to  the  last  form. 

96.  Extendi  facias  against  an  heir,  after  judgment  on  bond  of  an- 
cestor.    1  Rob.  Prac.  570. 

Whereas  D.  J.  in  our  court  of  our  county  aforesaid,  held  be- 
fore our  justices  of  our  said  court,  at  the  courthouse,  by  the  judg- 
ment of  the  said  court  hath  recovered  against  R.  C.  brother  and 
heir  of  T.  C.  deceased,  £  200.  for  debt,  and  also  &c.  which 
to  the  said  D.  in  the  same  court  were  adjudged  for  his  costs  by 
him  about  his  suit  in  that  behalf  expended,  to  be  levied  of  one 
tenement  containing  50  acres  of  land  with  the  appurtenances, 
in  the  county  aforesaid,  which  descended  to  the  said  R.  in  fee 
simple  from  the  said  T.  his  brother,  as  by  the  record  of  the  said 
judgment  in  our  said  court  manifestly  appears  :  But  because  it 
is  unknown  how  much  the  said  tenement  with  its  appurtenances 
is  worth  by  the  year  in  all  the  issues  besides  reprises,  we  com- 
mand you  that  by  the  oath  of  good  and  lawful  men  of  your  baili- 
wick, you  diligently  enquire  how  much  the  said  tenement  with 
its  appurtenances  is  worth  by  the  year  in  all  issues  besides  re- 
prises, and  such  inquisition  being  thereof  by  3'ou  diligently  made, 
you  deliver  the  said  tenement  with  its  appurtenances,  according 
to  the  true  value  thereof,  to  the  said  D.  without  delay,  to  hold 
to  the  said  D.  and  his  assigns,  until  he  shall  thereof  have  levied 
his  debt  and  costs  aforesaid.  And  how  3'ou  shall  execute  this 
writ,  make  known  to  the  justices  of  our  said  court,  at  the  court- 
house, on  the  first  day  of  the  next term.     And  have  then 

there  the  names  of  those  by  whose  oath  you  make  the  said  in- 
quisition, and  this  writ.     Witness  &c. 


238  Executions* 

97.  Distringas  against  a  corporation.     1  Rob.  Prac.  568.  Sess. 
Acts  1836-7,  p.  45.  ch.  68.  <^  4. 

We  command  you  that  you  distrain  the ,  being  a  cor- 
poration, by  all  the  lands  and  chattels  of  the  said  corporation  in 
your  bailiwick,  so  that  neither  the  said  corporation,  nor  any  one 
through  it,  lay  hands  on  the  same  until  you  shall  have  another 
command  from  us  in  that  behalf,  and  that  you  answer  to  us  for 
the  issues  of  the  same,  so  that  the  said  corporation  render  to 

the  sum  of  $ ,  with  interest  thereon  to  be  computed 

after  the  rate  of  six  per  centum  per  annum  from  the day 

of till  payment,  which  the  said lately  in  our  &c. 

hath  recovered  against  the as  well  for  a  certain  debt  as 

for  interest  thereon,  also  $ which  to  the  said in  the 

same  court  were  adjudged  for  his  costs  by  him  about  his  suit  in 

that  behalf  expended  ;  whereof  the is  convict  as  appears 

of  record.     And  in  what  manner  you  shall  have  executed  this 
our  command,  make  known  &c.     And  have  &c. 

98.  Distringas  in  detinue.     1  Rob.  Prac.  569. 

We  command  you  that  you  distrain  C.  D.  by  all  his  lands  and 
chattels  in  your  bailiwick,  so  that  neither  he  nor  anyone  through 
him  lay  hands  on  the  same  until  you  shall  have  another  com- 
mand from  us  in  that  behalf,  and  that  you  answer  to  us  for  the 
issues  of  the  same,  so  that  he  render  to  A.  B.  two  negro  slaves 
named  CcBsar  and  Pompey,  of  the  prices  of  $  400.  each,  which 
the  said  A.  B.  lately  in  our  court  of  &c.  hath  recovered  against 
the  said  C.  D.  if  the  said  slaves  may  be  had,  but  if  not,  then 
the  prices  aforesaid  of  them,  or  of  such  of  them  as  may  not  be 
had  ;  whereof  the  said  C.  D.  is  convict  as  appears  of  record. 
And  in  what  manner  you  shall  have  executed  this  our  command, 
make  known  &c. 

If  the  judgment  be  against  an  executor  or  administrator,  add,  after 
C.  i>.  where  the  name  first  occurs,  the  words  "  executor  of  the  last  will 
and  testament  {or,  administrator  of  the  personal  estate)  of  E.  F.  de- 
ceased ;"  and  when  it  occurs  again,  add,  afl;er  C.  D.  "  executor  (or,  ad- 
ministrator) as  aforesaid."  No  other  change  is  necessary ;  the  deten- 
tion by  the  executor  or  administrator  being  a  wrong  of  his  own,  which 
subjects  him  personally  to  a  judgment  for  the  slaves  or  their  alternative 
value.  Allen's  ex' or  v.  Harlan's  admW,  6  Leigh  42.  Catlett's  ex' or  v. 
Russell,  Id.  344.  Greenlee's  adm'r  v.  Bailey,  9  Leigh  526. 


Executions.  2S9 

99.  FL  fa.  in  detinue  for  damages  and  costs,  in  the  same  urrit  with  the 

distringas.     1  Rob.  Prac.  569. 

We  also  command  you  that  of  the  goods  and  chattels  of  the 
said  C.  D.  in  your  bailiwick  (or,  if  against  an  executor  or  adminis- 
trator, of  the  goods  and  chattels  in  your  bailiwick  which  were  of 
the  said  E.  F.  deceased  at  the  time  of  his  death,  in  the  hands 
of  the  said   C.  D.  executor — or,  administrator — as  aforesaid) 

you  cause  to  be  made  $ ,  which  to  the  said  A.  B.  in  the 

same  court  were  adjudged  as  well  for  his  damages  which  he  sus- 
tained by  occasion  of  the  detention  of  the  said  slaves,  as  for  his 
costs  by  him  about  his  suit  in  that  behalf  expended,  whereof 
the  said  C.  D.  {or,  the  said  C.  D.  executor  as  aforesaid — or,  admi- 
nistrator as  aforesaid)  is  also  convict  as  appears  of  record ;  and 
that  you  have  that  money  before  &c.  at  &c.  on  the  same  day 
above  written,  to  render  to  the  said  A.  B.  for  the  damages  and 
costs  aforesaid.     And  have  then  there  &c. 

100.  Ca.  sa.  in  detinue,  for  damages  and  costs,  along  with  the  distrin- 

gas.    1  Rob.  Prac.  569. 

We  also  command  you  that  you  take  the  said  A.  B.  if  he  be 
found  within  your  bailiwick,  &c.  to  satisfy  the  said  C.  D.  $20. 
which  to  the  said  C.  D.  Sec.  whereof  the  said  A.  B.  is  also  con- 
vict &c.     And  have  &c. 

101.  Distringas  directed  to  be  superseded  as  to  specific  thing,  and 

executed  for  the  alternative  value.     1  Rob.  Prac.  569. 

For  good  cause  shewn,  the  court  directs  the  distringas  issued 
upon  the  judgment  in  this  action,  to  be  superseded  so  far  as  it 
relates  to  the  specific  property,  and  to  be  executed  for  the  alter- 
native price  or  value  only. 

102.  Alternative  value  not  being  rendered  to  plaintiff,  fieri  facias f 
elegit,  or  ca.  sa.  allowed  to  issue.     1  Rob.  Prac.  569,  70. 

The  distri?igas  issued  upon  the  judgment  in  this  action  having 
been  heretofore  superseded  as  to  the  specific  property,  and  di- 
rected to  be  executed  for  the  alternative  price  or  value  only, 
and  the  defendant  having  nevertheless  failed  to  render  to  the 
plaintiff  the  said  alternative  price  or  value,  the  court  doth  now 
allow  the  said  plaintiff  to  prosecute  a  writ  oi  fieri  facias,  elegit,  or 
capiat  ad  satisfaciendum,  for  taking  the  goods,  lands  or  body  of  the 
defendant  to  satisfy  the  said  plaintiff  the  alternative  price  or 
value  aforesaid. 


240  Executions. 

Note.  Garland  v.  Bugg,  5  Munf.  166  is  the  authority  for  this  order. 
It  is  proper  to  add,  that  by  a  late  act,  the  plaintiff  in  actions  of  detinue, 
after  judgment  rendered  therein,  **  may  sue  out  and  prosecute,  at  his  elec- 
tion, either  a.  distringas  or  an  execution  for  the  specific  property,  if  to  be 
found,  or  any  other  execution  necessary  to  recover  the  alternative  value 
thereof,  now  authorized  by  law^  upon  other  judgments."  See  the  act  in 
Sess.  Acts  of  1839,  p.  44.  ch.  69. 

103.  Writ  of  jjossession  after  judgment  for  plaintiff  in  ejectment. 

1  Rob.  Prac.  462,  3. 

Whereas  Aminadah  Seekrigkt,  late  in  our  &c.  halh  recovered 
against  K.  Anderson  his  term  yet  to  come,  of  and  in  one  mes- 
suage and  100  acres  of  land,  with  the  appurtenances,  lying  and 
being  in  the  county  aforesaid,  which  A.  B.  to  him  the  said  A.  S. 
did  demise  for  a  term  of  years  which  is  not  yet  ended,  to  wit, 
from  the  30th  day  of  June  1792,  until  the  full  end  and  term  of 
20  years  thence  next  following  and  fully  to  be  completed  and 
ended,  by  virtue  of  which  demise  the  said  A.  S.  into  the  said 
demised  premises  entered,  and  was  thereof  possessed  until  the 
said  R.  A.  afterwards,  to  wit,  on  the  3d  day  of  May  1793,  with 
force  and  arms,  into  the  said  demised  premises,  in  and  upon  the 
possession  of  him  the  said  A.  S.  thereof  entered,  and  him  the 
said  A.  S.  therefrom  did  eject ;  whereof  the  said  R.  A.  is  con- 
vict, as  appears  to  us  of  record :  Therefore  we  command  you 
that  the  said  A.  S.  his  possession  of  his  term  aforesaid  yet  to 
come,  of  and  in  the  said  premises,  you  cause  to  have.  And  how 
you  shall  execute  this  writ,  make  known  &c.     And  have  &c. 

104.  Writ  of  seisin  after  judgment  for  demandant  in  a  writ  of  right. 

1  Rob.  Prac.  479. 

Whereas,  upon  a  certain  writ  of  right  prosecuted  in  our  cir- 
cuit superior  court  of  law  and  chancery  for  the  county  of  H. 
between  A.  B.  demandant  and  C.  D.  tenant,  for  &c.  (here  de- 
scribe the  tenement)  it  was  lately  considered  by  our  said  court 
that  the  demandant  recover  against  the  tenant  his  seisin  of  the 
said  tenement,  to  hold  to  him  the  said  demandant  and  his  heirs, 
quit  of  the  said  tenant  and  his  heirs  forever :  Therefore  we  com- 
mand you  that  you  cause  the  said  A.  B.  to  have  his  seisin  of  the 
tenement  aforesaid,  without  delay.  And  how  &c.  And  have 
&c. 


Executions.  S41 

105.  Writ  of  seisin  after  judgment  for  demandant  in  dower,  where 
the  husband  died  seized.     1  Rob.  Prac.  490.  493,  4,  5. 

Whereas  A.  D.  widow  of  C.  D.  deceased,  lately  claimed  to 
be  endowed  of  one  full  and  equal  third  part  of  &c.  (here  de- 
scribe the  tenements)  and  to  recover  her  said  dower,  prosecuted 
her  writ  of  unde  nihil  habet  against  E.  F.  in  our  &c.  whereupon 
it  is  considered  by  our  said  court  that  the  said  A.  D.  recover 
against  the  said  E.  F.  her  seisin  of  one  full  and  equal  third  part 
of  the  said  tenements,  to  hold  to  her  in  severalty,  as  and  for  her 
dower  therein  :  Therefore  we  command  you  that  you  cause  the 
said  A.  D.  to  have,  without  delay,  her  seisin  of  one  full  and 
equal  third  part  of  the  tenements  aforesaid,  to  hold  to  her  in  se- 
veralty as  aforesaid.     And  how  &c.     And  have  &c. 

106.  Writ  of  seisin  after  judgment  for  demandant  in  dower,  where 

the  husband  had  aliened.    1  Rob.  Prac.  490  to  493. 

Whereas  A.  D.  widow  of  C.  D.  deceased,  lately  claimed  to 
be  endowed  of  one  full  and  equal  third  part  of  &c.  (here  de- 
scribe the  land)  and  to  recover  her  said  dower,  prosecuted  her 
writ  of  unde  nihil  habet  against  E.  F.  in  our  &c.  on  which  issue 
was  joined  between  her  and  the  said  E.  F.  and  the  jurors  found 
for  her  upon  the  said  issue,  and  farther  the  said  jurors  found 
that  the  said  C.  D.  the  husband  of  the  said  A.  D.  though  seized, 
during  the  coverture,  of  the  said  land,  did  not  die  seized  thereof, 

but  aliened  the  same  on  the day  of —  to  the  said  E. 

F.  [or,  to ,  under  whom  the  said  E.  F.  claimed)  and  that 

the  said  land  was  of  the  value  of  $ at  the  time  of  the  aliena- 
tion, and  was  of  the  value  of  S  — —  on  the  day  the  said  jury 
were  so  impannelled  ;  whereupon,  by  the  judgment  of  our  said 
court,  it  was  considered  that  the  said  A.  D.  recover  against  the 
said  E.  F.  her  seisin  of  what  was  one  full  and  equal  third  part 
of  the  said  land,  according  to  the  value  thereof  at  the  time  of 
the  alienation  by  her  husband,  to  hold  to  her  in  severalty,  as  and 
for  her  dower  in  the  said  land  :  Therefore  we  command  you  that 
you  cause  the  said  A.  D.  to  have,  without  delay,  her  seisin  in  a 
part  of  the  said  land,  which  shall  be  the  same  proportion  thereof, 
that  one  third  of  the  sum  found  to  be  the  value  of  the  land  at 
the  time  of  the  alienation,  is  of  the  sum  found  to  be  the  whole 
value  thereof  at  the  time  the  jury  were  impannelled  ;  to  hold 
such  part  to  her  in  severalty  as  aforesaid.  And  how  &c.  And 
have  &c* 

ai 


242  Executions. 

107.  Writ  of  possession  after  judgment  for  plaintiff  upon  complaint 

of  unlaivful  entry  or  detainer.     1  Rob.  Prac.  498. 

We  command  you  that  you  cause  J.  M.  to  have  his  posses- 
sion of  a  certain  tenement  containing  &c.  lying  &c.  which  he 
lately,  in  our  court  of  hustings  for  the  city  of  R.  hath  recovered 
against  N.  H.  R.  and  M.  G.  whereof  they  have  been  convicted 
of  unlawfully  turning  him  out  of  possession  {or,  unlawfully  hold- 
ing him  out  of  possession)  as  appears  of  record.  And  how  you 
shall  have  executed  this  writ,  make  known  &c. 

108.  Writ  of  seisin  after  judgment  for  plaintiff  in  action  of  waste, 

1  Rob.  Prac.  501. 

Whereas  C.  D.  tenant  for  life  of  a  certain  tenement  in  the 
county  of  H.  the  reversion  whereof  is  in  A.  B.  has  lately  been 
convicted  in  &c.  of  committing  waste,  during  his  estate,  of  the 
timber  trees  belonging  to  three  acres  of  land,  parcel  of  the  said 
tenement,  which  three  acres  are  bounded  as  follows,  that  is  to 
say,  (describing  the  parcel  as  in  the  verdict) :  Therefore  we 
command  you  that  without  delay  you  cause  the  said  A.  B.  to 
have  his  full  seisin  of  the  said  three  acres  of  land  so  wasted  as 
aforesaid.     And  how  &c. 

109.  Execution  upon  judgment  against  principal  and  sureties  quashed 
on  motion  of  sureties,  and  exceptions  filed  by  plaintiff.  1  Rob. 
Prac.  538,  9.  570,  71.  Bullitt's  ex'ors  v.  Winslons,  1  Munf. 
269.. 

On  the  motion  of  S.  J.  W.  and  E.  W.  to  quash  an  execution 
sued  out  of  this  court  by  T.  H.  and  T.  J.  B.  executors  of  C.  B. 
deceased,  against  the  goods  and  chattels  of  J.  C.  L.  and  the 
said  *S.  J.  W.  and  E.  W.  on  the  21st  day  of  February  1804, 
upon  a  judgment  obtained  in  this  court:  This  day  came  as  well 
the  said  S.  J.  W.  and  E.  W.  as  the  said  executors,  by  their  at- 
torneys, and  the  evidence  on  the  said  motion  being  heard,  the 
court  is  of  opinion  that  such  proceedings  have  been  had  under 
a  former  execution  in  this  case,  as  make  it  improper  and  illegal 
to  levy  that  issued  on  the  said  21st  of  February  1804 ;  and  it  is 
therefore  ordered  that  the  said  last  mentioned  execution  be 
quashed.  To  which  opinion  of  the  court  quashing  the  said 
execution,  the  defendants  in  the  motion  tendered  a  bill  of  ex- 
ceptions, which  was  received,  signed  and  sealed  b>^the  court, 
and  ordered  to  be  made  part  of  the  record  upon  the  motion. 


Executions.  243 

110.  Another  case  of  an  execution  upon  judgment  against  principal 
and  surely  quashed  on  suretr/s  motion.  Steele  v.  Boyd,  6  Leigh 
547. 

Since  the  judgment  of  this  court  awarding  execution  to  E. 
B.  against  D.  S.,  S.  S.  and  /.  S.  upon  a  bond  for  the  forthcom- 
ing of  property,  a  writ  o\'  Jieri  facias  having  been  sued  out,  and 
levied  upon  the  property  of  S.  S.  one  of  the  sureties  in  the  said 
bond,  the  said  S.  §.  by  his  attorney  this  day  moved  the  court  to 
discharge  the  said  levy,  and  to  exonerate  him  from  all  further 
process  of  execution  in  the  case,  on  the  ground  that  the  said 
E.  B.  has  made  a  compromise  with  the  said  D.  S.  the  principal, 
and  given  him  time  to  pay  the  debt,  without  the  knowledge  or 
consent  of  the  said  S.  S.  Whereupon  the  said  E.  B.  appeared, 
by  her  attorney,  in  opposition  to  the  motion,  and  the  evidence 
adduced  on  both  sides  being  considered,  and  the  parties  fully 
heard,  it  seems  to  the  court  to  be  established  by  the  said  evi- 
dence, that  after  the  award  of  execution  on  the  forthcoming 
bond,  the  said  D.  S.  filed  a  bill  of  injunction  to  stay  proceed- 
ings in  the  case,  and  an  agreement  of  compromise  was  there- 
upon made  between  him  and  the  said  E.  B.  without  the  know- 
ledge or  consent  of  the  said  S.  S.  his  surety  as  aforesaid,  that 
he  would  dismiss  the  said  bill  at  his  costs,  and  pay  her  $  250.  in 
annual  instalments  of  $50.  each,  and  she  would  take  that  sum 
in  those  instalments,  in  full  discharge  of  the  debt  due  on  the 
forthcoming  bond  ;  and  that  afterwards,  in  pursuance  of  the  said 
agreement  of  compromise,  the  said  D.  S.  accordingly  dismissed 
his  bill,  and  paid,  at  different  times,  nearly  the  whole  amount  of 
250  dollars :  and  the  court  is  of  opinion  that  the  effect  of  the 
said  agreement  of  compromise,  and  the  dismission  and  pay- 
ments in  pursuance  thereof,  was  to  exonerate  the  said  S.  S.  the 
surety  from  all  liability  on  the  said  forthcoming  bond.  Therefore 
it  is  ordered  that  the  levy  of  the  last  execution  on  the  property 
of  the  said  S.  S.  be  discharged,  that  the  sheriff,  who  made  the 
said  levy,  restore  the  said  property  to  him,  and  that  he  be  exo- 
nerated from  all  further  process  of  execution  on  the  said  forth- 
coming bond  ;  and  it  is  further  ordered  that  the  said  E.  B.  shall 
be  at  liberty  to  sue  out  new  execution  on  the  said  forthcoming 
bond  against  all  the  obligors,  but  without  the  right  to  cause  the 
same  to  be  levied  on  S.  S.  or  his  property  ;  and  that,  to  give  ef- 
fect to  this  order,  the  clerk  make  the  proper  endorsement  on  all 
future  executions  to  be  issued  on  the  said  forthcoming  bond. 


244  Executions. 

XI 1.  Order  upon  defendant's  motion  to  quash  execution  issued  by  a 
Justice  of  the  yeace,     Sess.  Acts  1839-40,  p.  50.  ch.  58.  ■§  1. 

C  D.  this  clay  moved  the  court  to  quash  an  execution  issued 
by  a  justice  of  the  peace  of  this  county,  upon  a  judgment  on 
a  warrant  in  favour  of  A.  B.  against  the  said  C.  D. ;  and  it 
appearing  that  ten  days  notice  of  this  motion  has  been  given 
to  the  said  A.  B.  he  was  solemnly  called,  but  came  not : 
whereupon  the  court,  having  heard  the  evidence  adduced  by 
the  said  C.  D.  is  of  opinion  that  the  said  execution  issued  ille- 
gally, and  doth  order  that  the  same  be  quashed. 

1 12.  Order  on  plaintiff'' s  motion,  quashing  execution  and  forthcom-' 
ing  bond  taken  under  it,  and  allowing  him  to  sue  out  new  execution 
on  the  original  judgment.     1  Rob.  Prac.  572. 

W.  F.  by  his  attorney,  this  day  moved  the  court  to  quash  the 
execution  sued  out  of  this  court  by  him  against  R.  L.  and  J.  G. 
and  the  forthcoming  bond  taken  under  the  same  from  the  said 
R.  L.  and  produced  notice  of  the  motion  to  the  said  R.  L.  and 
J.  G.  who  were  solemnly  called,  but  came  not:  whereupon, 
evidence  being  adduced  shewing  that  the  surety  in  the  said  bond 
is  insolvent,  and  was  insolvent  at  the  time  of  his  being  taken, 
it  is  therefore  considered  by  the  court  that  the  execution  and 
bond  aforesaid  be  quashed,  pursuant  to  the  motion  of  the  said 
W.  F.  and  that  he  may  sue  out  new  execution  upon  his  original 
judgment  against  the  said  R.  L,  and  J.  G. 

113.  New  execution  directed  to  issue.     1  Rob.   Prac.  572.      Ward 

V.  Vass,  7  Leigh  135. 

A.  B.  by  his  attorney,  informing  the  court  that  since  the  re- 
turn of  the  execution  upon  his  judgment  against  C.  D.  and  E. 
F.  the  clerk  has  declined  issuing  a  new  execution  without  the 
direction  of  the  court,  and  asking  that  such  direction  be  given, 
the  court,  after  hearing  from  the  clerk  his  view  of  the  case,  and 
after  inspecting  the  said  return,  doth  order  and  direct  that  a  new 
execution  may  issue  upon  the  judgment  aforesaid. 


Scire  facias  after  judgment  or  ujion  recognizance.        245 
CHAPTER  XXV. 

SCIRE    FACIAS    AFTER    JUDGMENT    OR    UPON    RECOGNIZANCE. 


1.  Scire  facias  where  execution  has  not  issued  within  the  year. 
1  Rob.  Prac.  573. 

The  commonwealth  of  Virginia  to  the  sheriff  of  H.  county, 
greeting  :*  Whereas  G.  M.  at  a  circuit  superior  court  of  law  and 
chancery  held  for  the  county  of  H.  at  the  courthouse,  on  the 
day  of ,  by  the  judgment  of  our  said  court,  recover- 
ed against  R.  W.  and  A.  BA  S  100.  with  interest  thereon  to  be 
computed  after  the  rate  of  six  per  centum  per  annum  from  the 
day  of  till  payment,  for  a  certain  debt  and  the  in- 
terest thereon,  and  also  S for  his  costs  by  him  about  his 

suit  in  that  behalf  expended  ;  whereof  the  said  R.  W.  and  A. 
B.  are  convicted,  as  by  the  record  thereof  in  our  same  court 
manifestly  appears.  And  now,  on  behalf  of  the  said  G.  M.  it 
is  said,  that  although  judgment  be  given  as  aforesaid,  3'et  execu- 
tion of  the  debt,  interest  and  costs  aforesaid  still  remains  to  be 
made.  But  more  than  a  year  has  passed  since  the  judgment. 
Therefore,  at  the  instance  of  the  said  G.  M.  we  command  you 
that  you  make  known  to  the  said  R.  W.  and  A.  B.  that  they  be 
&c.|  at  &c.  on  (Sec.  to  shew,  if  they  have  any  thing  to  say,  why 
the  said  G.  M.  ought  not  to  have  execution  against  them  of  the 
debt,  interest  and  costs  aforesaid,  according  to  the  judgment 
aforesaid.     And  have  then  there  this  writ.     Witness  &:c. 

*  To  whom  directed,  see  1  Rob.  Prac.  580. 

t  The  judgment  must  be  correctly  stated  according  to  the  nature  of  the  case. 
See  1  Rob.  Prac.  580. 

X  WJien  returnable,  see  1  Rob.  Prac.  582. 

2.  Scire  facias  upon  death  of  plaintiff,  for  his  executor  or  adminis- 
trator to  have  execution.     1  Rob.  Prac.  574. 

Ajier  reciting  the  judgment  as  above,  to  the  words  ^^  whereof  the 

said are  convicted,  as  by  the  record  thereof  in  our  same  court 

manifestly  appears,''^  inclusive  of  those  words,  proceed  as  follows  : 

And  afterwards  the  said died,  having  first  made  his 

last  will  and  testament,  and  thereof  appointed  E.  F.  executor, 
who,  since  the  death  of  the  said ,  hath  duly  proved  the 


246        Scire  facias  after  Judgment  or  upon  7'ecognizance. 

said  will,  and  taken  upon  himself  the  execution  of  the  same 
{or — died  intestate,  since  whose  death,  administrationof  the  per- 
sonal estate  of  the  said  deceased  has  been  granted  to  E.  F.)  as 
we  have  been  informed.  And  now,  on  behalf  of  the  said  E.  F. 
as  such  executor  {or,  administrator)  as  aforesaid,  it  is  said,  that 
although  judgment  be  given  as  aforesaid,  yet  execution  of  the 
debt  {or,  damages)  interest  and  costs  aforesaid  still  remains  to  be 
made.  Therefore,  at  the  instance  of  the  said  E.  F.  executor 
{or,  administrator)  as  aforesaid,  we  command  &c.  (as  last,  ex- 
cept that,  instead  of  "  G.  M."  will  be  inserted  "  E.  F.  executor 
{or,  administrator)  as  aforesaid." 

3.  Scire  facias  upon  death  of  defendant,  to  have  execution  against  his 

executor  or  administrator     1  Rob.  Prac.  574. 

The  last  form  may  be  used,  omitting  the  words  "  executor 
{or,  administrator)  as  aforesaid,"  after  the  plaintiff's  name,  and 
inserting  them  after  the  defendant's,  and  making  the  conclusion 
as  follows :  "  to  shew,  if  he  has  any  thing  to  say,  why  the  said 

G.  M.  ought  not  to  have  execution  against  him  the  said , 

as  such  executor  {or,  administrator)  as  aforesaid,  of  the  debt  (or, 
damages)  interest  and  costs  aforesaid,  to  be  levied  of  the  goods 

and  chattels  which  were  of  the  said at  the  time  of  his  death, 

in  the  hands  of  the  said to  be  administered.     And  have 

then  there  this  writ.     Witness  &c." 

4.  Scire  facias  upon  the  death  of  a  party  whose  estate  is  committed 

to  a  sheriff. 

And  afterwards  the  said  L.  J.  died,  having  first  made 

his  last  will  and  testament,  and  thereof  appointed  E.  F.  and  G. 
H.  executors,  but  the  executors  therein  named  having  refused 
to  undertake  the  executorship,  and  no  person  having  applied  for 
administration  with  the  will  annexed  of  the  said  L.  J.  the  court 
of  the  said  county  has  ordered  W.  D.  sheriff  of  the  said  county, 
to  take  the  estate  of  the  said  L.  J.  deceased  into  his  possession 
{or — died  intestate,  as  it  is  said,  and  the  court  of  the  said  coun- 
ty has  ordered  W.  D.  sheriff  of  the  said  county,  to  take  the  es- 
tate of  the  said  L.  J.  deceased  into  his  possession) ;  by  virtue  of 
which  order,  and  of  the  act  of  assembly  in  such  case  made,  the 
sa4d  W.  D.  sheriff  as  aforesaid,  is  administrator  with  the  will 
annexed  {or,  administrator)  of  the  said  L.  J.  deceased,  entitled 
to  all  the  rights,  and  bound  to  perform  all  the  duties,  of  such  ad- 
ministrator.    And  now  &c.  (proceeding  as  in  No.  2.  or  No.  3.)   • 


Scire  facias  after  judgment  or  upon  recognizance.        247 

5.  Upon  a  judgment  in  detinue  against  a  decedent,  scire  facias 
agai7ist  his  executor  or  administrator.  Allen's  ex' or  v.  Harlan's 
admW,  6  Leigh  42.  Cotlett's  ex'or  v.  Riissell,  6  Leigh  344. 
Greenlee^s  admW  v.  Bailey,  9  Leigh  526. 

Whereas  J.  M.  W.  at  &c.  recovered  against  A.  M.  the  fol- 
lowing negro  slaves,  to  wit,  Isaac  a  negro  man,  &c.  of  the  price 
of  £  100.  each,  if  they  might  be  had,  but  if  not,  then  the  prices 
aforesaid  of  them,  or  of  such  of  them  respectively  as  might  not 
be  had,  and  also  $40.  which  to  the  said  J.  M.  W.  in  the  same 
court  were  adjudged  as  well  for  his  damages  which  he  sustained 
by  occasion  of  the  detention  of  the  said  slaves,  as  for  his  costs 
by  him  about  his  suit  in  that  behalf  expended  :  whereof  the 
said  A.  M.  was  convicted,  as  by  the  record  thereof  in  our  same 
court  manifestly  appears.  And  now,  on  behalf  of  the  said  J. 
M.  iV.  it  is  said,  that  although  judgment  be  given  as  aforesaid, 
yet  execution  thereof  still  remains  to  be  had  ;  and  we  are  in- 
formed that  since  the  said  judgment  was  given,  the  said  A.  M. 
has  died,  having  first  made  his  last  will  and  testament,  and 
thereof  appointed  E.  F.  executor,  who  hath  proved  the  same, 
and  taken  upon  himself  the  burthen  of  its  execution  {or — died 
intestate,  and  administration  of  his  personal  estate  has  been 
granted  to  E.  F.) ;  and  we  are  further  informed  that  since  the 
death  of  the  said  A.  M.  the  slaves  aforesaid  have  come  to  the 
hands  and  possession  of  the  said  E.  F.  executor  {ory  adminis- 
trator) as  aforesaid.  Therefore,  at  the  instance  of  the  said  J. 
M.  W.  we  command  you  that  you  make  known  to  the  said  E.  F, 
executor  {or,  administrator)  as  aforesaid,  that  he  be  &c.  at  &c. 
on  &c.  to  shew,  if  he  have  any  thing  to  say,  why  the  said  J.  M. 
W.  ought  not  to  have  execution  against  him  for  the  slaves  afore- 
said, if  they  may  be  had,  but  if  not,  then  for  the  prices  afore- 
said of  them,  or  of  such  of  them  respectively  as  may  not  be 
had,  and  execution  against  him,  as  such  executor  (or,  adminis- 
trator) as  aforesaid,  of  the  damages  and  costs  aforesaid,  to  be 
levied,  as  to  the  said  damages  and  costs,  of  the  goods  and  chattels 
which  were  of  the  said  A.  M.  at  the  time  of  his  death,  in  the 
hands  of  the  said  E.  F.  to  be  administered.  And  have  then 
there  &c. 

6.  Upon  judgment   in   ejectment,   scire  facias    against   defendant's 

heir.     1  Rob.  Prac.  574,  5. 

Whereas  John  Doe  lessee  of  J.  T.  at  &c.  recovered  against 
R.  B.  his  term  then  to  come,  of  and  in  two  messuages  with  the 
appurtenances,  in  the  county  aforesaid,  &c.  (describe  them) 
whereof  the  said  R.  B.  is  convicted,  as  by  the  record  of  the  said 


24S        Scire  facias  after  jtidgment  or  upon  recognizance, 

recovery,  remaining  in  our  said  court,  appears  :  And  whereas  a 
writ  was  awarded  to  cause  the  said  Jolm  Doe  to  have  his  posses- 
sion of  his  term  aforesaid,  but  before  the  said  writ  was  issued, 
the  said  R.  B.  died  intestate,  leaving  R,  B.  his  only  child  and 
heir,  and  the  said  John  Doe  has  not  yet  had  possession  of  his 
said  term  :  Wherefore  we  command  you  that  you  make  known 
to  the  said  R.  B.  son  and  heir  of  the  said  R.  B.  deceased,  that 
he  be  &c.  at  &c.  on  &c.  to  shew,  if  he  has  any  thing  to  say, 
why  the  said  John  Doe  ought  not  to  have  a  writ  to  cause  him  to 
have  his  possession  of  his  term  aforesaid,  according  to  the  form 
and  effect  of  the  judgment  aforesaid.  And  have  &c.  Wit- 
ness &c. 

7.  Upon  a  judgment  for  money,  scire  facias  aginst  heirs  and  terre^ 
tenants,  to  have  execution  of  the  lands.     1  Rob.  Prac.  574,  5. 

Whereas  &c.  whereof  &c.  (as  in  No.  1.  to  "manifestly  ap- 
pears.") And  after  the  giving  of  the  said  judgment,  the  said 
died,  leaving his  heirs>  as  we  have  been  in- 
formed.    And  we  are  farther  informed  that  the  said was, 

at  the  day  of  obtaining  the  said  judgment,  and  afterwards^ 
seized  of  lands  and  tenements  to  him  and  his  heirs,  and  that  exe- 
cution of  the  debt  {or,  damages)  interest  and  costs  aforesaid  still 
remains  to  be   made.     Therefore,  at  the   instance  of  the    said 

,  we  command  you  that  you  make  known  to  the   said 

,  as  such  heirs  of  the  said  — as  aforesaid,  and 

also  to  the  tenants  of  all  the  lands  and  tenements  in  your  baili- 
wick, whereof  the  said ,  at  the  day  of  obtaining  the  said 

judgment,  or  at  any  time  afterwards,  was  seized  to  him  and  his 
heirs,  that  they  be  &c.  at  &c.  on  &c.  to  shevvj  if  they  have  any 
thing  to  say,  why  the  said  debt  {or,  damages)  interest  and  costs 
aforesaid  ought  not  to  be  levied  of  the  said  lands  and  tene- 
ments, according  to  the  effect  of  the  judgment  aforesaid.  And 
have  &c.     Witness  &c. 

8.  Scire  facias  by  administrator  de  bonis  non.     1  Rob.  Prac.  576-. 

Whereas  A.  B.  as  executor  of  the  last  will  and  testament  {or, 
as  administrator  of  the  personal  estate)  of  C.  D.  deceased,  at 
&c.  by  &c.  recovered  against  E.  F.  &c.  (recite  the  judgment) 
whereof  the  said  E.  F.  is  convicted,  as  by  the  record  thereof  in 
the  same  court  manifestly  appears.  And  afterwards  the  said 
A.  B.  died,  since  whose  death,  administration  of  the  personal 
estate  of  the  said  C.  D.  deceased,  unadministered  by  the  said 
A.  B.,  with  the  will  of  the  said  C.  D.  annexed,  has  been  granted  to 
G.  H.  as  we  are  informed.     And  now,  on  behalf  of  the  said  G. 


Scire  facias  after  judgment  or  upon  recognizance.        249 

H.  as  such  administrator  as  aforesaid,  it  is  said,  &c.  (Conclude 
the  writ  as  in  the  case  of  a  scire  facias  upon  death  of  plaintiff, 
for  his  administrator  to  have  execution  ;  for  which,  see  No.  2.) 

9.  Scire  facias  against  administrator  de  bonis  non.     1  Rob.  Prac* 

676. 

Whereas  A.  B.  at  &c.  by  &;c.  recovered  against  C.  P.  as  exe- 
cutor of  the  last  will  and  testament  {or,  as  administrator  of  the 
personal  estate)  of  jEJ.  F.  deceased  (recite  the  judgment)  whereof 
the  said  C.  D.  as  executor  {or,  administrator)  as  aforesaid,  is  con- 
victed, as  by  the  record  thereof  in  the  same  court  manifestly  ap- 
pears. And  afterwards  the  said  C.  D.  died,  since  whose  death, 
administration  of  the  personal  estate  of  the  said  E.  F.  deceased, 
unadministered  by  the  said  C.  D.,  with  the  will  of  the  said  E.  F, 
a7inexed,  has  been  granted  to  G.  H.  as  we  are  informed.  And 
now,  on  behalf  of  the  said  A.  B.  it  is  said,  that  although  judg- 
ment be  given  as  aforesaid,  yet  execution  of  the  debt  {or,  da- 
mages) interest  and  costs  aforesaid  still  remains  to  be  made. 
Therefore,  at  the  instance  of  the  said  A.  B.  we  command  you 
that  you  make  known  to  the  said  G.  H.  administrator  as  afore^ 
said,  that  he  be  &c.  at  &c.  on  &c.  to  shew,  if  he  has  any  thing 
to  say,  why  the  said  A.  B.  ought  not  to  have  execution  against 
him  the  said  G.  H.  as  such  administrator  as  aforesaid,  of  &c. 
(Conclude  the  writ  as  in  the  case  of  a  scire  facias,  upon  death  of 
defendant,  to  have  execution  against  his  administrator;  for  which, 
see  No.  3.) 

10.  Scire  facias  where  feme  plaintiff  marries  after  judgment. 
1  Rob.  Prac.  576,  7.  581. 

After  reciting  the  judgment,  and  continuing  as  in  other  cases  to  the 
words  "  manifestly  appears,"  proceed  as  follows :  And  afterwards 

the  said intermarried  with — ,  and  took  him  to  husband, 

and  thenceforward  was,  and  now  is,  covert  of  the  said ,  as 

we  have  been  informed.     And  now,  on  behalf  of  the  said 

and his  wife,  it  is  said,  that  although  judgment  be  given 

as  aforesaid,  yet  execution  of  the  debt  {or,  damages)  interest 
and  costs  aforesaid  still  remains  to  be  made.     Therefore,  at  the 

instance  of  the  said and his  wife,  we  command  you 

&c.  (as  in  No.  1.) 

32 


250        Scire  facias  after  judgment  or  wpon  recognizance. 

11.   Where  feme  defendant  marries  after  judgment.     1  Rob.  Prac. 

576,  7. 

The  last  form  will  answer,  putting  the  plaintiff's  name  instead  of 
" and his  wife." 


12.  Where  feme  plaintiff  marries  after  recovering  judgment,  and  is 

survived  by  her  husband,  who  dies  before  execution. 

If  the  husband,  surviving  the  wife,  does  not  in  his  lifetime  reduce  her 
choses  in  action  into  possession,  then,  although  in  equity  those  claiming 
under  him  are  entitled  to  them,  they  must  be  recovered  not  by  his  repre- 
sentatives, but  the  wife's,  and  they  will  take  the  property  as  trustees  for 
the  representatives  of  the  husband.  By  lord  Tenterden,  C.  J.  in  Betts 
V.  Kimpton,  2  Barn.  &  Ad.  273.  22  Eng.  Com.  Law  Rep.  71. 

13.  Where,  after  judgment  for  husband  and  wife,  husband  is  survived 
by  his  wife,  who  dies  before  execution.    1  Rob.  Prac.  577. 

Whereas  A.  B.  and  C.  his  wife,  at  &c.  (reciting  the  judgment, 
and  continuing  as  in  other  cases  to  the  words  "  manifestly  ap- 
pears.") And  after  the  said  judgment  was  given,  the  said  A. 
B.  died,  leaving  the  said  C.  him  surviving;  and  the  said  C.  af- 
terwards died,  &c.  (as  in  other  cases  of  scire  facias,  upon  the 
death  of  plaintiff,  for  his  executor  or  administrator  to  have  exe- 
cution ;  the  form  of  which  is  No.  2.) 

14.  Where,  after  judgment,  plaintiff  dies,  and  his  administratrix^ 

marries.     1  Rob.  Prac.  576,  7.  581. 

After  reciting  the  judgment,  and  continuing  as  in  other  cases  to  the 
words  "  manifestly  appears,''^  proceed  as  follows :  And  after  the  said 
judgment  was  so  given,  the  said  A.  B.  died  intestate,  upon  whose 
death,  administration  of  the  personal  estate  of  the  said  deceased 
was  granted  to  E.  F.  as  we  are  informed  ;  and  afterwards  the 

said  E.  F.  intermarried  with ,  and  took  him  to  husband, 

and  thenceforward  was,  and  now  is,  covert  of  the  said ,  as 

we  are  likewise  informed.    And  now,  on  behalf  of  the  said 

and  E.  his  wife,  it  is  said  &c. 

15.  On  a  judgment  providing  for  further  breaches,  scire  facias  set- 

ting forth  such  breaches.     1  Rob.  Prac.  577. 

Whereas  A.  B.  at  &c.  recovered  against  C.  D.  &c.  $4361.10 
cents,  for  a  certain  debt,  and  also  $  10.26  cents  for  his  costs  by 
him  about  his  suit  in  that  behalf  expended,  whereof  the  said  C. 


Scire  facias  after  Judgment  or  upon  recognizance.         251 

D.  is  convict  as  appears  of  record  ;  but  the  said  judgment  was 
to  be  discharged  by  the  payment  of  $  334.38  cents,  then  as- 
sessed for  the  damages  sustained  by  the  said  A.  B.  by  occasion 
of  the  breach  which  had  been  assigned  of  the  condition  of  the 
writing  obhgatory  in  the  declaration  in  the  said  suit  mentioned, 
with  interest  thereon  &c.  till  payment,  and  the  costs  aforesaid, 
and  such  other  damages  as  might  be  thereafter  assessed  upon  a 
writ  or  writs  o^  scire  facias  being  sued  out  on  the  said  judg- 
ment, and  new  breaches  of  the  condition  of  the  said  writing 
obligatory  assigned.  And  now  the  said  A.  B.  for  further  and 
other  breaches  of  the  condition  of  the  said  writing  obligatory, 
according  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, gives  our  said  court  here  to  understand  and  be  inform- 
ed, &c.  (assigning  the  further  breaches ;)  which  said  several 
breaches  of  the  condition  of  the  said  writing  obligatory  so  as- 
signed, the  said  A.  B.  doth  aver,  and  give  our  said  court  here 
to  understand  and  be  informed,  are  further  and  other  breaches 
than  the  breach  for  and  by  reason  of  which  he  obtained  the  said 
judgment  so  by  him  recovered  as  aforesaid  ;  and  for  which  said 
other  and  further  breaches  he  hath  humbly  besought  us  to  pro- 
vide him  a  proper  remedy  :  Therefore  we  command  you  that 
you  make  known  to  the  said  C.  D.  that  he  be  &c.  to  shew  cause, 
if  any  he  can,  why  execution  should  not  be  had  and  awarded 
against  him  upon  the  judgment  aforesaid,  for  the  damages  which 
the  said  A.  B.  hath  sustained  by  reason  of  the  said  further  and 
other  breaches  of  the  condition  of  the  writing  obligatory  afore- 
said.    And  have  then  there  &c.     Witness  &c. 

16.  Scire  facias  on  a  judgment  against  a  personal  representative,  to 
be  levied  quando  acciderint.     1  Rob.  Prac.  577.  581,  2. 

Whereas  A.  B.  at  &c.  by  &c.  recovered  against  C.  D.  execu- 
tor of  the  last  will  and  testament  {or,  administrator  of  the  per- 
sonal estate)  of  E.  F.  deceased,  S ,  w-ith  interest  &c.  and 

also  S for  his  costs  &c.  to  be  levied  of  the  goods  and 

chattels  which  were  of  the  said  E.  F.  deceased  at  the  time  of 
his  death,  and  which,  since  the  plea  pleaded  by  the  said  C.  D. 
in  the  said  suit,  had  come,  or  which  should  thereafter  come,  to 
the  hands  of  the  said  C.  D.  as  such  executor  {or,  administrator) 
to  be  administered ;  as  by  the  record  of  the  said  judgment  in 
our  same  court  manifestly  appears.  And  now,  on  behalf  of  the 
said  A.  B.  it  is  said,  that  although  judgment  be  given  as  afore- 
said, yet  execution  of  the  debt  {or,  damages)  interest  and  costs 
aforesaid  still  remains  to  be  made ;  and  that  since  the  said 
plea  pleaded,  divers  goods  and  chattels  which  were  of  the  said 

E.  F.  at  the  time  of  his  death,  came  to  and  are  now  in  the 


252        Scire  facias  after  Judgment  or  upon  recognizance. 

hands  of  the  said  C.  D.  as  executor  (or,  administrator)  as  afore- 
said, to  be  administered.  Therefore,  at  the  instance  of  the  said 
A.  B.  we  command  you  that  you  make  known  to  the  said  C.  D. 
executor  (or,  administrator)  as  aforesaid,  that  he  be  &c.  at  &c. 
on  &c.  to  shew,  if  he  has  any  thing  to  say,  why  the  said  A.  B. 
ought  not  to  have  execution  against  him  the  said  C.  D.  executor 
{or,  administrator)  as  aforesaid,  of  the  debt  {or,  damages). inte- 
rest and  costs  aforesaid,  according  to  the  judgment  aforesaid, 
to  be  levied  of  the  goods  and  chattels  which  were  of  the  said 
E.  F.  deceased  at  the  time  of  his  death,  and  which  have  come 
to  and  are  now  in  the  hands  of  the  said  C.  D.  as  executor 
{or,  administrator)  as  aforesaid,  to  be  administered,     And  have 

17.  Where  the  sale  of  property  is  indemnified  and  the  value  is  le- 
covered  from  the  execution  creditor,  scire  facias  to  have  new  execu" 
tion.     1  Rob.  Prac.  540.  578. 

Whereas  A.  B.  at  &c.  by  &c.  recovered  against  C.  D.  &c. 
(reciting  the  judgment  as  in  No.  1.  to  *'  manifestly  appears.") 
And  after  the  said  judgment  was  so  given,  a  writ  o{  feri  facias 
was  sued  out  thereupon,  directed  to  the  sheriff  of  the  county  of 
H.  who  levied  the  same  on  the  following  property,  to  wit,  (here 
specify  it) ;  and  a  doubt  arising  whether  the  right  of  the  proper- 
ty was  in  the  said  C.  D.  or  not,  the  said  sheriff  applied  to  the 
said  A.  B.  for  an  indemnifying  bond  with  security,  conditioned 
according  to  the  statutes  in  such  case  ;  which  bond  was  accord- 
ingly given,  and  the  sheriff,  after  such  notice  as  the  law  re- 
quires, sold  the  said  property,  on  the day  of  ,  for 

the  sum  of  $ .     And  afterwards  one  E.  F.  who  claimed 

the  said  property,  prosecuted  his  action  upon  the  said  bond,  and 
in  the  said  action  recovered  against  the  said  A.  B.  damages  to 

the  amount  of  the  said  sum  of  $ ;  which  being  shewn  to 

the  court  from  which  the  said  execution  issued,  our  said  court 
did  thereupon  quash  so  much  of  the  return  on  the  said  execu- 
tion as  related  to  the  sale  aforesaid.  And  now  the  said  A.  B. 
desires  that  a  new  writ  or  writs  of  execution  may  be  awarded, 
for  the  amount  for  which  the  said  propert)'  was  sold,  together 
with  legal  interest  from  the  day  of  sale.  Therefore  we  com- 
mand you  that  you  make  known  to  the  said  C.  D.  that  he  be 
&c.  at  &c.  on  &c.  to  shew,  if  he  has  any  thing  to  say,  why  a 
new  writ  or  writs  of  execution  should  not  be  accordingly  award* 
pd»     And  have  &c. 


Scire  facias  after  judgment  or  upon  recognizance.        253 

18.    Where  tenant  by  elegit  is  evicted  of  lands  held  by  extent,  scire 
facias  to  have  new  execution.     1  Rob.  Prac.  548.  578. 

Whereas  A.  B.  at  &c.  by  &c.  recovered  against  C.  D.  &c. 
(reciting  the  judgment  as  in  No.  1.  to  "  manifestly  appears.") 
And  after  the  said  judgment  was  so  given,  the  said  A.  B.  pro- 
secuted a  writ  of  elegit  thereon,  directed  to  the  sheriff"  of  H. 
county,  which  was  returned  by  the  said  sheriff"  with  an  inquisi- 
tion taiien  the day  of ,  whereby  it  was  found  that 

the  said  C.  D.  on  the  day  of  the  caption  of  the  said  inquisition, 
was  possessed  of  no  goods  and  chattels  as  of  his  own  proper 
goods,  but  that  the  said  C.  D.  at  the  time  of  rendering  the  judg- 
ment aforesaid,  was  seized  in  his  own  demesne,  as  of  fee,  of 
and  in  (here  specify  the  houses  and  lands)  with  the  appurtenan- 
ces, of  the  annual  value,  in  all  the  issues  beyond  reprises,  of 

S ,  of  which  were  a  true  and  equal  moiety  of  all 

and  singular  the  lands,  tenements  and  hereditaments  whatsoever, 
in  the  county  aforesaid,  of  the  said  C.  D.  ;  which  said  moiety  he 
the  said  sheriff",  the  day  aforesaid,  to  the  said  A.  B.,  at  a  reason- 
able extent,  delivered,  to  hold  to  him  and  his  assigns  as  his  free- 
hold, until  he  should  have  levied  the  debt  {or,  damages)  interest 
and  costs  aforesaid.  And  now,  on  behalf  of  the  said  A.  B.  it 
is  said,  that  he  the  said  A.  B.  being  tenant  as  aforesaid  under  and 
by  the  said  writ  of  elegit,  was,  before  satisfaction  made  him  for 
his  debt  {or,  damages)  interest  and  costs  aforesaid,  to  wit,  on 
the  day  of ,  evicted  of  his  title  in  the  lands,  tene- 
ments and  hereditaments  which  he  held  by  virtue  of  the  extent 

aforesaid,  by  judgment  had  against  him  at  the  suit  of , 

without  any  fraud  or  default  on  the  part  of  him  the  said  A.  B. — 
Therefore,  at  the  instance  of  the  said  A.  B.  we  command  you 
that  you  make  known  to  the  said  C.  D.  that  he  be  &c.  at  &c.  on 
&c.  to  shew,  if  he  has  any  thing  to  say,  why  the  said  A.  B.  may 
not  sue  out  other  writ  of  execution  for  the  residue  of  his  debt 
{or,  damages)  interest  and  costs  aforesaid,  appearing  to  remain 
unpaid.     And  have  then  there  &c. 

19.  Scire  facias  to  have  execution  against  property  acquired  by  de^ 
fendant  after  taking  oath  of  insolvency.     1  Rob.  Prac.  560,  61. 

"578.  582. 

Whereas  A.  B.  at  &c.  by  &c.  recovered  against  C.  D.  Sec. 
(reciting  the  judgment  as  in  No.  1.  to  "  manifestly  appears.") 
And  after  the  said  judgment  was  so  obtained  against  the  said  C. 
D.  the  said  A.  B.  prosecuted  a  writ  of  capias  ad  satisfaciendum 
thereon,  directed  to  the  sheriff"  of  H.  county,  by  virtue  of  which 
the  said  C.  D.  was  taken  in  execution,  and  the  said  C.  D.  being 


254        Scire  facias  after  judgment  or  upon  recognizance. 

so  in  execution,  on  the day  of ,  delivered  in  such 

schedule  and  took  such  oath  as  the  law  prescribes  for  insolvent 
debtors,  and  performed  in  other  things  vi^hat  the  law  in  such 
cases  requires,  and  thereupon  was  duly  discharged  as  an  insol- 
vent debtor.  And  now,  on  behalf  of  the  said  A.  B.  it  is  said, 
that  since  the  said  C.  D.  was  so  discharged,  he  has  acquired  and 
become  possessed  of  divers  lands  and  tenements,  goods  and 
chattels,  and  that  nevertheless  the  debt  {or,  damages)  interest 
and  costs  aforesaid  still  remain  unpaid.  Therefore,  at  the  in- 
stance of  the  said  A.  B.  we  command  you  that  you  make  known 
to  the  said  C.  D.  that  he  be  &c.  at  &c.  on  &c.  to  shew,  if  he  has 
any  thing  to  say,  why  the  said  A.  B.  may  not  have  execution 
upon  the  judgment  aforesaid,  against  the  lands  and  tenements, 
goods  and  chattels  which  the  said  C.  D.  has  so  acquired  or  be- 
come possessed  of  since  his  said  discharge.     And  have  &c. 

20.  Scire  facias  to  have  execution  against  the  property  of  a  debtor 
discharged  on  account  of  the  creditor's  failure  to  pay  the  jail  fees. 
I  Rob.  Prac.  561.  578. 

Whereas  A.  B.  at  &c.  by  &c.  recovered  against  C.  D.  &c. 
(reciting  the  judgment  as  in  No.  1.  to  "manifestly  appears.") 
And  after  the  said  judgment  was  so  given,  the  said  A.  B.  sued 
out  thereupon  a  writ  of  capias  ad  satisfaciendum  directed  to  the 
sheriff  of  iZ.  county,  by  virtue  of  which  writ  the  said  C.  D.  was 
taken  in  execution,  but  the  said  A.  B.  not  paying  to  the  jailor 
the  fees  chargeable  on  account  of  the  imprisonment  of  the  said 
C.  D.  the  said  C.  D.  was,  on  account  of  the  failure  of  the  said 
A.  B.  to  pay  the  said  fees,  discharged  by  the  jailor  in  the  man- 
ner authorized  by  law.  Wherefore,  at  the  instance  of  the  said 
A.  B.  we  command  you  that  you  make  known  to  the  said  C.  D. 
that  he  be  &c.  at  &c.  on  &c.  to  shew,  if  he  has  any  thing  to  say, 
why  the  said  A.  B.  may  not  have  a  new  execution  upon  the 
judgment  aforesaid,  against  the  goods  and  chattels,  lands  and 
tenements  of  him  the  said  C.  D.     And  have  &c. 

21.  Scire  facias  upon  recognizance  of  a  surety  for  costs.     1  Rob. 

Prac.  178.  578. 

Whereas,  in  an  action  of lately  depending  in  our  cir- 
cuit superior  court  of  law  and  chancery  for  the  county  of  H.  be- 
tween C.  D.  plaintiff  and   E.  F.  defendant,  A.  B.  of  the  said 

county  of  H.  personally  appeared  in  the  said  court  on  the 

day  of ,  and  undertook  for  the  plaintiff,  that  he  should 

satisfy  and  pay  all  such  costs  and  damages  as  might  be  award- 
ed to  the  defendant  in  case  the  plaintiff  should  be  cast  in  the 


Scire  facias  after  Jtcdgment  or  upon  recognizance.        255 

said  suit,  and  also  that  he  the  said  plaintiff  should  satisfy  and 
pay  all  the  fees  which  would  become  due  from  him  to  the  offi- 
cers of  the  said  court,  or  that  he  the  said  A.  B.  would  satisfy  and 
pay  those  costs,  damages  and  fees  for  him ;  as  by  the  record  of 
the  said  recognizance,  remaining  in  our  said  court,  appears. 
And  whereas,  at  a  circuit  superior  court  of  law  and  chancery 

for  the  said  county  of  H.  held  on  the day  of ,  it  was 

considered  by  our  said  court  that  the  plaintiff  in  the  said  action 
should  take  nothing,  and  that  the  defendant  should  recover 
against  him  his  costs  by  him  about  his  defence  expended,  which 

costs  amount  to  $ ;  whereof  the  said  C.  D.  is  convict,  as 

appears  also  of  record.  Nevertheless  the  said  C.  D.  has  not  sa- 
tisfied and  paid  those  costs,  neither  has  the  said  A.  B.  satisfied 
and  paid  the  same  for  him,  as  by  the  said  E.  F.  we  are  inform- 
ed. Therefore  we  command  you  that  you  make  known  to  the 
said  A.  B.  that  he  be  before  &c.  to  shew,  if  any  thing  he  has 
to  say,  why  the  said  E.  F.  ought  not  to  have  execution  against 
him  of  the  costs  aforesaid,  according  to  the  form  and  effect  of 
the  recognizance  aforesaid. 

22.  Scire  facicbs  upon  recognizance  of  special  hail  taken  by  a  sheriff. 
1  Rob.  Prac.  578.  581. 

Whereas,  on  the day  of ,  A.  B.  sued  out  of  the 

clerk's  office  of  our  circuit  superior  court  of  law  and  chancery 
for  the  county  of  H.  a  writ  of  capias  ad  respondendum  against  C. 
D.  returnable  at  the  rules  v/hich  were  to  be  holden  for  the  said 

court  on  the  first  monday  in following,  on  which  writ  the 

plaintiff  endorsed  that  it  was  an  action  of  debt  founded  upon  a 
writing  obligatory  for  the  payment  of  money,  and  that  bail  was 
required  ;  and  the  said  writ  being  directed  to  the  sheriff  of  the 
said  county  of  H.,  G.  H.  deputy  for  J.  K.  sheriff  of  the  said 
county,  executed  the  same,  and  while  the  said  C.  D.  was  in  his 
custody,  and  before  the  return  day  of  the  said  writ  was  passed, 

to  wit,  upon  the day  of in  the  year ,  E.  F.  of 

the  county  of personally  appeared  before  the  said  G.  H, 

deputy  for  the  said  J.  K.  sheriff  of  the  said  county,  and  under- 
took for  the  said  C.  D.  at  the  suit  of  the  said  A.  B.  in  the  said 
action,  that  in  case  the  said  C.  D.  should  be  cast  in  the  said  suit, 
he  the  said  C.  D.  would  pay  and  satisfy  the  condemnation  of 
the  court,  or  render  his  body  to  prison  in  execution  for  the  same, 
or  that  he  the  said  E.  F.  would  do  it  for  him ;  which  recogni- 
zance was  taken  and  certified  by  the  said  deputy  sheriff  under 
his  hand,  and  the  same  was  underwritten,  subscribed  and  sealed 
by  the  said  E.  F.  as  prescribed  by  law,  and  the  said  deputy  she- 
riff thereupon  discharged  the  said  C.  D.  from  custody,  and  he 


256        Scire  facias  after  judgment  or  upon  recogni:<ianc6* 

returned  the  said  recognizance,  together  with  the  writ,  to  the 
office  from  which  the  said  writ  issued,  where  it  remains  filed 
and  preserved  among  the  papers  of  the  cause.  And  whereas, 
at  &c.  A.  B.  by  the  judgment  of  our  said  court  given  in  the  said 
action,  recovered  against  the  said  C.  D.  &c.  (recite  the  judgment 
as  in  other  cases) ;  whereof  the  said  C.  D.  is  convicted,  as  by 
the  record  of  the  said  recovery,  remaining  in  our  said  court,  ap- 
pears. Nevertheless  the  said  C.  D.  hath  not  as  yet  paid  and 
satisfied  to  the  said  A.  B.  the  debt  (or,  damages)  interest  and 
costs  aforesaid,  nor  hath  he  rendered  his  body  to  prison  in  exe- 
cution for  the  same,  according  to  the  form  and  effect  of  the  said 
recognizance,  as  we  are  informed.  Therefore,  at  the  instance 
of  the  said  A.  B.  we  command  you  that  you  make  known  to  the 
said  E.  F.  that  he  be  &c.  at  &c.  on  &c.  to  shew,  if  he  has  any 
thing  to  say,  why  the  said  A.  B.  ought  not  to  have  execution 
against  the  said  E.  F.  of  the  debt  {or,  damages)  interest  and 
costs  aforesaid,  according  to  the  effect  of  the  recognizance  afore- 
said.    And  have  &c. 

23.  Scire  facias  upon  recognizance  of  special  hail  taken  by  a  Judge 
or  justice  of  the  peace.     1  Rob-  Prac.  578.  581. 

Whereas,  in  an  action  of lately  depending  in  our  circuit 

superior  court  of  law  and  chancery  for  the  county  oi'  H.  between 

A.  B.  plaintiff  and  C.  D.  defendant,  bail  was  lawfully  required 
on  the  writ  of  capias  ad  respondendum,  and  the  said  writ  being 
executed  by  the  officer  to  whom  it  was  directed,  the  defendant 
was  discharged  from  custody  upon  giving  good  special  bail  ta 
the  action  in  the  following  manner,  that  is  to  say,  after  the  re- 
turn day  of  the  said  writ,  to  wit,  on  the  — —  day  of  '  in 

the  year ,  E.  F.  of  the  county  of personally  appeared 

before  G.  H.  one  of  the  judges  of  the  general  court  {or,  a  jus- 
tice of  the  peace  for  the  county  of  H. — or,  the  corporation  of 
jR.)  and  undertook  for  the  said  C.  D.  at  the  suit  of  the  said  A. 

B.  in  the  said  action,  that  in  case  the  said  C.  D.  should  be  cast 
in  the  said  suit,  he  the  said  C.  D.  would  pay  and  satisfy  the 
condemnation  of  the  court,  or  render  his  body  to  prison  in  exe- 
cution for  the  same,  or  that  he  the  said  E.  F.  would  do  it  for 
him  ;  as  appears  by  the  said  recognizance,  which  was  duly  trans- 
mitted by  the  said  judge  {or,  justice)  to  the  clerk  of  our  said 
court,  and  remains  filed  with  the  papers  in  the  said  action.  An<J 
whereas,  at  &c.  (like  the  last  form.) 


Scire  facias  after  judgment  or  wpon  recognizance.        257 

24.  Scire  facias  upon  recognizance  of  special  bail  given  in  court, 

1  Rob.  Prac.  578.  581. 

Whereas,  in  an  action  of lately  depending  in  &c.  be- 
tween A.  B.  plaintiff  and  C.  D.  defendant,  the  said  court,  for 
good  cause  shewn,  ruled  the  defendant  to  give  special  bail,  and 

on  the day  of in  the  year ,  E.  F.  of  the  county 

of personally  appeared  in  the  said  court,  and  undertook 

for  the  defendant,  that  in  case  he  should  be  cast  in  the  said  suit, 
he  the  said  defendant  would  pay  and  satisfy  the  condemnation 
of  the  court,  or  render  his  body  to  prison  in  execution  for  the 
same,  or  that  he  the  said  E.  F.  would  do  it  for  him  ;  as  by  the 
record  of  the  said  recognizance,  remaining  in  our  said  court, 
appears.     And  whereas,  at  &c.  (like  the  two  last  forms.) 

25.  Scire  facias  against  special  bail  in  detinue,  wpon  recognizance 
taken  by  a  sheriff.  1  Rob.  Prac.  578.  581.  Cloicd  v.  Catlett's 
ex' or,  4  Leigh  462. 

Whereas,  on  the day  of ,  A.  B.  sued  out  of  &c. 

a  writ  of  capias  ad  respondendum  against  C.  D.  in  an  action  of 
detinue  for  (here  describe  the  property  in  the  said  writ  named) 
which  writ  was  returnable  at  the  rules  to  be  holden  for  the  said 

court  on  the  first  monday  in  following,  and  on  the  same 

the  plaintiff  endorsed  the  true  species  of  action,  and  that  bail 
was  required  ;  and  the  said  writ  being  directed  to  &c.  (as  in  No. 
22.  to)  that  in  case  the  said  C.  D.  should  be  cast  in  the  said 
suit,  he  the  said  C.  D.  would  satisfy  the  condemnation  of  the 
court,  either  by  restoring  to  the  said  A.  B.  the  specific  property 
which  he  might  recover  in  the  said  suit,  and  paying  to  him  all 
costs  and  damages  which  he  might  recover  therein,  or  by  pay- 
ing to  the  plaintiff  the  alternative  value  of  such  property,  with 
the  costs  and  damages  aforesaid,  or  would  render  his  body  to 
prison  in  execution  for  the  same,  or  that  he  the  said  E.  F.  would 
do  it  for  him ;  which  recognizance  was  taken  and  certified  by 
&c.  (as  in  No.  22.  to)  papers  in  the  cause.  And  whereas  at  &c. 
A.  B.  by  the  judgment  of  our  said  court  given  in  the  said  ac- 
tion, recovered  against  the  said  C.  D.  the  said  negro  girl  slave 
named  Betty,  of  the  value  of  $  400.  if  she  might  be  had,  but  if 
not,  then  the  value  aforesaid  of  her,  together  with  S  13.  for  his 
damages  which  he  sustained  by  occasion  of  the  detention  of  the 
said  slave,  and  $  16.47  cents  for  his- costs  by  him  about  his  suit  in 
that  behalf  expended  ;  whereof  the  said  C.  1).  is  convicted,  as 
by  the  record  of  the  said  recovery,  remaining  in  our  said  court, 
appears.  Nevertheless  the  said  C.  D.  hath  not  satisfied  the  con- 
demnation of  our  said  court,  either  by  restoring  to  the  said  A. 
33 


258        Scire  facias  after  judgment  or  upon  recognizance, 

B.  the  specific  property  recovered  in  the  said  suit,  and  paying 
to  him  the  costs  and  damages  recovered  therein,  or  by  paying 
to  him  the  alternative  value  of  the  said  property,  with  the  said 
costs  and  damages,*  nor  hath  he  rendered  his  body  to  prison  in  exe- 
cution for  the  same,  according  to  the  form  and  effect  of  the  said  re- 
cognizance, as  we  are  informed.  Therefore,  at  the  instance  of  the 
said  A.  B.  we  command  you  that  you  make  known  to  the  said 
E.  F.  that  he  be  &c.  at  &c.  on  &c.  to  shew,  if  he  has  any  thing 
to  say,  why  the  said  A.  B.  ought  not  to  have  execution  against 
him  the  said  E.  F.  according  to  the  effect  of  his  recognizance 
aforesaid.     And  have  &c. 

*  If  the  special  bail  has  surrendered  his  principal  within  the 
time  limited  and  in  the  manner  provided  by  law  for  the  dis- 
charge of  other  special  bail,  then,  in  lieu  of  the  words  in  italics, 
insert  the  following :  "  but  has  only  rendered  the  body  of  the 
said  C.  D.  to  prison  in  execution  for  the  same,  as  we  are  in- 
formed, which  surrender  discharges  the  said  C.  D.  only  from 
the  payment  of  the  alternative  value  of  the  property  so  recovered, 
and  the  costs  and  damages  aforesaid,  and  does  not  discharge 
him  from  the  obligation  to  deliver  the  specific  property,  accord- 
ing to  the  effect  of  his  said  recognizance." 

26.  Scire  facias  against  executor  or  administrator  of  special  bail 
in  action  for  debt  or  damages. 

After  the  other  recitals  in  a  scire  facias  against  special  bail,  and 
before  the  word  "  Therefore,''^  insert  the  following :  And  whereas, 
since  the  recognizance  and  undertaking  by  the  said  E.  F.  so  as 
aforesaid  made,  he  the  said  E.  F.  has  died,  having  first  made 
his  last  will  and  testament,  and  thereof  appointed  G.  H.  execu- 
tor, who,  since  the  death  of  the  said  E.  F.  hath  duly  proved  the 
said  will,  and  taken  upon  himself  the  execution  of  the  same 
{Or — died  intestate,  since  whose  death,  administration  of  the 
personal  estate  of  the  said  deceased  has  been  granted  to  G.  H.) 
as  we  are  informed.  Therefore,  at  the  instance  of  the  said  A. 
B.  we  command  you  that  you  make  known  to  the  said  G.  H. 
executor  {or,  administrator)  as  aforesaid,  that  he  be  &c.  at  &c. 
on  &c.  to  shew,  if  he  has  any  thing  to  say,  why  the  said  A.  B. 
ought  not  to  have  execution  against  him  the  said  G.  H.  as  such 
executor  {or,  administrator)  as  aforesaid,  of  the  debt  {or,  da- 
mages) interest  and  costs  aforesaid,  to  be  levied  of  the  goods 
and  chattels  which  were  of  the  said  E.  F.  at  the  time  of  his 
death,  in  the  hands  of  the  said  G.  H.  to  be  administered,  ac- 
cording to  the  effect  of  the  recognizance  aforesaid.  And  have 
&c.     Witness  &c. 


Scire  facias  after  judgment  or  upon  recognizance*        259 

27.  Scire  facias  against  an  officer  who  discharged  defendant  from 
custody  without  talcing  bail,  or  without  returning  recognizance, 
1  Rob.  Prac.  136.  578. 

Whereas  &c.  (as  in  No.  22.  to)  executed  the  same,  and  dis- 
charged the  said  C.  D.  from  custody  without  bail  {or,  executed 
the  same,  but  did  not  return  any  recognizance  of  bail  to  the  of- 
fice of  the  said  court  with  the  said  writ)  so  that  the  said  J.  K.  is 
to  be  regarded,  to  all  intents  and  purposes,  as  the  special  bail  of 
the  said  C.  D.  And  whereas,  at  &c.  A.  B.  by  the  judgment  of 
our  said  court  given  in  the  said  action,  recovered  against  the  said 

C.  D.  &c.  (recite  the  judgment  as  in  other  cases) ;  whereof  the 
said  C.  D.  is  convicted,  as  by  the  record  of  the  said  recovery, 
remaining  in  our  said  court,  appears.     Nevertheless  the  said  C. 

D.  hath  not  as  yet  paid  and  satisfied  to  the  said  A.  B.  the  debt 
(or,  damages)  interest  and  costs  aforesaid,  nor  hath  he  rendered 
his  body  to  prison  in  execution  for  the  same,  as  we  are  informed. 
Therefore,  at  the  instance  of  the  said  A.  B.  we  command  you 
that  you  make  known  to  the  said  J.  K.  that  he  be  &c.  at  &c.  on 
&c.  to  shew,  if  he  has  any  thing  to  say,  why  the  said  A.  B. 
ought  not  to  have  execution  against  the  said  J.  K.  of  the  debt 
(or,  damages)  interest  and  costs  aforesaid,  according  to  the 
statute  in  such  case  made  and  provided.     And  have  &c. 

28.  Where  hail  taken  by  an  officer  is  adjudged  insufficient,  scire  fa- 
cias  against  the  bail  and  the  officer  as  joint  cognizors.  1  Rob. 
Prac.  241.  578. 

Whereas  &c.  (as  in  No.  22.  to)  where  it  remains  filed  and 
preserved  among  the  papers  of  the  cause.  And  whereas  ex- 
ceptions to  the  sufficiency  of  the  bail  so  taken  were  made  by 
the  said  A.  B.  within   the  time  allowed  by  law,  and  the  said 

court,  on  the  day  of ,   adjudged  the  said  bail  to 

have  been  insufficient  at  the  time  of  taking  it;  by  reason  where- 
of the  said  J.  K.  is  held  bound  with  the  bail  and  responsible  to 
the  said  A.  B.  in  the  same  manner  as  if  the  said  /.  K.  had 
united  with  the  bail,  as  a  joint  and  several  cognizor,  in  the  re- 
cognizance aforesaid.  And  whereas,  at  &c.  A.  B.  by  the  judg- 
ment of  our  said  court  given  in  the  said  action,  recovered 
against  the  said  C.  D.  &c.  (recite  the  judgment  as  in  other 
cases) ;  whereof  the  said  C.  D.  is  convicted,  as  by  the  record 
of  the  said  recovery,  remaining  in  our  said  court,  appears. 
Nevertheless  the  said  C  D.  hath  not  as  yet  paid  and  satisfied  to 
the  said  A.  B.  the  debt  {or,  damages)  interest  and  costs  afore- 
said, nor  hath  he  rendered  his  bodj^  to  prison  in  execution  for 
the  same,  as  we  are  informed.  Therefore,  at  the  instance  of  the 


260        Scire  facias  after  judgment  or  upon  recognizance. 

said  A.  B.  we  command  you  that  you  make  known  to  the  said 
E.  F.  and  J.  K.  that  they  be  &c.  at  &c.  on  &c.  to  shew,  if  they 
have  any  thing  to  say,  why  the  said  A.  B.  ought  not  to  have 
execution  of  the  debt  (or,  damages)  interest  and  costs  aforesaid, 
against  them  the  said  E.  F.  and  J.  K.  according  to  the  effect  of 
the  said  recognizance,  and  the  statute  in  such  case  made  and 
provided.     And  have  &c. 

29.  Scire  facias  on  recognizance  to  Tceepj,he  peace.     1  Rob.  Prac. 
578.  582.     Respuhlica  v.  Cobbet,  3  Yeates  93. 

Whereas,  at  a  court  held  for  the  said  county,  the day  of 

-,  before  the  justices  of  our  said  court,  M.  J.,  L.  J.  J.  and 


W.  R.  personally  appeared,  and  severally  acknowledged  them- 
selves to  be  indebted  to ,  governor  of  this  commonwealth, 

that  is  to  say,  the  said  M.  J.  in  the  sum  of ,  and  the  said 

L.  J.  J.  and  W.  R.  in  the  sum  of  each,  to  be  levied  of 

their  respective  goods  and  chattels,  lands  and  tenements,  and 
to  our  said  governor  or  his  successors,  for  the  use  of  the  com- 
monwealth, rendered,  with  a  condition  that  if  the  said  M.  J. 
should  keep  the  peace  and  be  of  good  behaviour  towards  all  the 
citizens  of  this  commonwealth,  and  particularly  towards  a  cer- 
tain C.  P.  H.  for  the  term  of  twelve  months  then  next  ensuing, 
then  the  recognizance  aforesaid  was  to  be  void ;  as  by  the  re- 
cord of  the  said  recognizance,  remaining  in  our  said  court,  ap- 
pears. And  whereas  the  said  M.  J.  has  not  kept  the  peace  and 
been  of  good  behaviour  towards  all  the  citizens  of  this  common- 
wealth for  the  term  of  twelve  months  next  ensuing  the  date  of 
the  said  recognizance  {or,  if  the  twelve  months  have  not  elapsed  when 
the  scire  facias  issues,  say — has  not,  from  the  time  of  the  said  re- 
cognizance, kept  the  peace  and  been  of  good  behaviour  towards 
all  the  citizens  of  this  commonwealth)  but  has  broken  the  peace 
and  been  of  bad  behaviour,  in  this,  that  before  the  expiration  of 
twelve  months  next  ensuing  the  date  of  the  said  recognizance, 

to  wit,  on  the  day  of ,  at  the  county  aforesaid,  he 

the  said  M.  J.  violently  assaulted  and  beat  one  A.  B. ;  whereby 
the  condition  of  the  said  recognizance  is  broken.  Therefore  we 
command  you  that  you  make  known  to  the  said  M.  J.,  L.  J.  J. 
and  W.  R.  that  they  be  &c.  at  &c.  on  &c.  to  shew,  if  any  thing 

for  themselves  they  have  to  say,  why  the  said ,  governor 

as  aforesaid,  may  not  have,  for  our  use,  execution  against  the 

said  M.  J.  of  the  said ,  and  against  the  said  L.  J.  J.  and 

W.  R.  of  the  said each,  to  be  levied  of  their  respective 

goods  and  chattels,  lands  and  tenements,  according  to  the  form 
and  effect  of  the  recognizance  aforesaid.     And  have  &c. 


Scire  facias  after  judgment  or  upon  recognizance.        261 

30.  Scire  facias  on  recognizance  to  appear  and  answer  a  felony. 
1  Rob.  Prac.  578. 

Whereas  J.  H.  and  S.  H.  at  a  court  held  for  C.  county,  at  the 
courthouse,  the  eleventh  day  of  January  1809,  personally  ap- 
peared before  the  justices  of  the  said  court,  and  acknowledged 
themselves  severally  indebted  to  W.  H.  C.  governor  of  this  com- 
monwealth, the  said  /.  H.  in  the  sum  of  $  2500.  and  the  said  S. 
H.  in  the  like  sum  of  $2500.  of  their  respective  goods  and  chat- 
tels, lands  and  tenements  to  be  levied,  and  to  the  said  governor 
or  his  successors,  for  the  use  of  the  commonwealth,  rendered  ; 
yet  upon  condition,  that  if  the  said  J.  H.  should  personally  ap- 
pear before  the  judge  of  &c.  at  &c.  on  the  first  day  of  the  then 
next  term,  to  answer  us  of  a  certain  felony  whereof  he  stood  ac- 
cused, and  should  not  depart  thence  without  the  leave  of  the 
said  court,  then  the  said  recognizance  was  to  be  void  ;  as  by  a 
copy  of  the  said  recognizance,  to  our  said  circuit  superior  court 
transmitted,  and  now  remaining  filed  among  the  records  thereof, 
manifestly  appears.  And  whereas  the  said  J.  H.  hath  failed  to 
make  his  personal  appearance  before  the  judge  of  our  said  cir- 
cuit superior  court,  at  the  time  and  place  aforesaid,  according 
to  the  condition  of  the  said  recognizance  ;  as  appears  of  record. 
Therefore  &c.  (as  last,  to)  execution  against  the  said  J.  H.  of 
the  said  $  2500.  and  against  the  said  S.  H.  of  the  like  sum  of 
$  2500.  to  be  levied  &c.  (as  last.) 

31.  Scire  facias  on  recognizance  of  witnesses  to  appear  and  give  evi- 
dence.    1  Rob.  Prac.  578. 

Whereas  J.  B.,  E.  B.  and  D.  U.  of  the  county  of  A.  afore- 
said, at  a  court  held  for  the  said  county  on  the day  of , 

personally  appeared  before  the  said  court,  and  severally  ac- 
knowledged themselves  to  be  indebted  to  J.  T.  governor  of  this 
commonwealth,  in  the  sum  of  £  100.  each,  of  their  respective 
goods  and  chattels,  lands  and  tenements  to  be  levied,  and  to  the 
said  governor  and  his  successors,  for  the  use  of  the  common- 
wealth, rendered;  yet  upon  this  condition,  that  if  the  said  J.  B. 
&c.  should  severally  make  their  personal  appearance  before  the 
judge  of  &c.  at  &c.  on  the  first  day  of  the  then  next  term,  to  give 
evidence  on  behalf  of  the  commonwealth  against  W.  R.  who 
stood  accused  of  felony,  and  should  not  depart  thence  without 
the  leave  of  the  said  court,  then  the  said  recognizance  was  to  be 
void ;  as  by  a  copy  of  the  said  recognizance,  to  the  clerk  of  our 
said  circuit  superior  court  transmitted,  and  now  remaining  filed 
among  the  records  of  the  said  court,  manifestly  appears.  And 
whereas  the  said  J.  B.  &c.  have  failed  to  make  their  personal 


262        Scire  facias  after  judgment  or  upon  recognizance. 

appearance  before  &c.  (as  last.)  Therefore  &c.  (as  in  No.  29. 
to)  execution  against  them  of  the  said  sum  of  £  100.  each,  to  be 
levied  &c.  (as  in  No.  29.) 

82.  Return  of  executed  upon  scire  facias  against  special  hail  return- 
able in  term  time.     1  Rob.  Prac.  582,  3. 

This  writ  was  executed  by  me  on  the day  of , 

being  more  than  ten  days  before  the  return  day. 

33.  Return  of  nihil  upon  scire  facias.     1  Rob.  Prac.  582.  583. 

The  within  named  C.  D.  resides  in  my  county,  but  he  hath 
not  any  thing  therein  whereby  I  can  make  known  to  him  as  with- 
in I  am  commanded,  nor  is  he  found  in  the  same. 

34.  Other  returns  upon  scire  facias.     1  Rob.  Prac.  582. 

See  ante,  p.  36.  No.  9.  and  p.  38.  No.  12.  13.  14. 

35.  Alias  scire  facias  awarded.     1  Rob.  Prac.  583. 

The  writ  of  scire  facias  issued  in  this  case  not  being  execu- 
ted, an  alias  writ  of  scire  facias  is  awarded  against  the  defen- 
dant, returnable  to  the  next  rules. 

36.  Scire  facias  foi'  renewal  of  a  judgment  being  returned  executed, 
execution  awarded.     1  Rob.  Prac.  583. 

The  defendant  having  been  duly  warned,  and  not  appearing, 
{or^  the  sheriff  having  made  return  &c.)  on  the  motion  of  the 
plaintiff  by  his  attorney,  it  is  considered  that  the  plaintiff  may 

have  execution  against  the  defendant  for  $ ,  with  interest 

thereon  to  be  computed  after  the  rate  of  six  per  centum  per  an- 
num from  the  — ■ —  day  of till  payment,  the  debt  and  in- 
terest {or,  the  damages  and  interest)  and  $ the  costs,  in  the 

writ  aforesaid  specified ;  and  also  that  the  plaintiff  recover 
against  the  defendant  his  costs  by  him  expended  in  suing  forth 
and  prosecuting  this  writ. 

37.  If  the  scire  facias  he  to  renew  a  judgment  in  ejectment. 

—. —  may  have  a  writ  to  cause  him  to  have  his  possession  of 
his  term  yet  to  come,  of  and  in  the  messuages,  plantations  and 
land,  with  the  appurtenances,  in  the  said  writ  mentioned,  and 
may  have  execution  against  the  defendant  for  $  10.  the  dama- 


Scire  facias  after  judgment  or  upon  recognizance.        263 

ges  and  costs  in  the  writ  aforesaid  specified  ;  and  it  is  farther 
considered  that  the  plaintiff  recover  against  the  defendant  his 
costs  by  him  expended  in  suing  forth  and  prosecuting  this  writ. 

38.  U'pon  scire  facias  to  revive  judgment  against  deceased,  award  of 

execution  against  executor  or  administrator. 

Add  the  words — to  be  levied  of  the  goods  and  chattels  of  the 
decedent  in  the  hands  of  the  defendant  to  be  administered. 

39.  Upon  scire  facias  to  revive  judgment  in  detinue  against  decedent, 

award  of  execution  against  executor  or  administrator. 

may  have  execution  against  the  defendant  for  the  fol- 
lowing negro  slaves  in  the  writ  aforesaid  mentioned,  to  wit, 
Isaac,  See.  of  the  price  of  $  300.  each,  as  specified  in  the  said 
writ,  if  they  may  be  had,  but  if  not,  then  the  prices  aforesaid  of 
them,  or  of  such  of  them  respectively  as  may  not  be  had,  and 

may  also  have  execution  against  the  defendant  for  S ,  the 

damages  and  costs  in  the  said  writ  mentioned,  to  be  levied,  as 
to  the  said  damages  and  costs,  of  the  goods  and  chattels  of  the 
decedent  in  the  hands  of  the  defendant  to  be  administered.  And 
it  is  further  considered  that  the  plaintiff  recover  against  the  de- 
fendant his  costs  by  him  expended  in  suing  forth  and  prosecu- 
ting this  writ,  to  be  levied  also  of  the  goods  and  chattels  of  the 
decedent  in  the  hands  of  the  defendant  to  be  administered. 

40.  Award  upon  scire  facias  assigning  new  breaches.    1  Rob.  Prac. 

583,  4. 

may  have  execution  against  the  defendant  for  the  da- 
mages which  the  said  plaintiff  has  sustained  by  reason  of  the 
new  breaches  assigned  in  the  said  writ,  and  that  those  damages 
be  enquired  of  by  a  jury  at  the  next  term. 

41.  Award  of  execution,  at  the  suit  of  the  governor  of  the  common- 
wealth, upon  a  recognizance. 

The  defendant  S.  H.  having  been  duly  warned,  and  not  ap- 
pearing, on  the  motion  of  the  attorney  for  the  commonwealth,  it 
is  considered  that  the  said  J.  T.  as  governor  aforesaid,  may,  for 
the  use  of  the  commonwealth,  have  execution  against  the  de- 
fendant for  the  S  2500.  in  the  writ  aforesaid  specified,  of  his 
goods  and  chattels,  lands  and  tenements  to  be  levied,  according 
to  the  form  and  effect  of  his  recognizance  therein  mentioned ; 
and  also  that  the  said  J.    T.  governor  as  aforesaid,  recover 


264        Scire  facias  after  judgment  or  upon  recognizance. 

against  the  defendant  the  costs  expended  in  suing  forth  and  pro- 
secuting this  writ. 

42.  Award  of  execution  on  a  scire  facias  against  special  bail  in  debt. 

The  defendant  having  been  duly  warned  and  not  appearing, 
on  the  motion  of  the  plaintiff  by  his  attorney,  it  is  considered 
that  the  plaintiff  may  have  execution  against  the  defendant  for 
$  350.  the  debt,  and  $  9.  the  costs  in  the  writ  aforesaid  specified, 
according  to  the  form  and  effect  of  his  recognizance  therein 
mentioned;  and  also  that  the  plaintiff  recover  against  the  said 
defendant  his  costs  by  him  expended  in  suing  forth  and  prose- 
cuting this  writ.  But  this  judgment  may  be  discharged  by  the 
payment  of  $  175.  with  interest  &c.  till  payment,  and  the  said 
$  9.  and  the  costs. 

43.  Award  of  execution  on  a  scire  facias  against  special  bail  in 

detinue. 

that  the  plaintiff  may  have  execution  against  the  defen- 
dant for  the  negro  girl  slave  named  Betty,  of  the  value  of  $  400. 
as  specified  in  the  said  writ,  if  the  said  slave  may  be  had,  but 
if  not,  then  the  value  aforesaid  of  her ;  also  that  the  plaintiff 
rnay  have  execution  against  the  said  defendant  for  $13.  the  da- 
mages, and  $  16.47  cents  the  costs  in  the  said  writ  likewise  spe- 
cified, according  to  the  effect  of  his  recognizance  therein  men- 
tioned ;  and  further  that  the  plaintiff  recover  against  the  defen- 
dant his  costs  by  him  expended  in  suing  forth  and  prosecuting 
this  writ. 

Note.  This  entry  is  according  to  the  form  heretofore  usually  observ- 
ed. But  the  opinions  of  the  judges  in  Cloud  v.  Catlett's  ex'or,  4  Leigh 
462.  proceed  upon  the  supposition  that  the  judgment  against  special  bail 
in  detinue  is  never  for  the  specific  thing.  An  entry  conforming  to  those 
opinions  will  be  as  follows : 

that  the  plaintiff  may  have  execution  against  the  defen- 


dant for  $  400.  the  value,  specified  in  the  said  writ,  of  the  slave 
therein  named,  and  for  $13.  the  damages,  and  $  16.47  cents  the 
costs  &c.  (as  before.) 

44.  Return  of  scire  facias  against  special  bail  amended.     1  Rob. 
Prac.  584.     Lee  ^  Fitzhugh  v.  Chilton,  5  Munf.  407. 

Execution  having  been  awarded  in  the  office  against  the  defen- 
dant when  the  second  writ  o^  scire  facias  was  returned,  and  the  re- 


Scire  facias  after  judgment  or  upon  recognizance.        265 

turn  of  7iihil  not  having  been  made  on  either  writ  in  a  proper 
manner,  the  plaintiff,  by  his  attorney,  this  day  moved  the  court 
to  permit  the  sheriff  to  amend  his  returns,  by  stating  that  the 
defendant  has  nothing  in  his  bailiwick  by  which  he  could  be 
summoned.  Whereupon  the  court  permitted  the  sheriff  to  amend 
his  return  on  the  first  scire  facias,  and  the  amendment  was  ac- 
cordingly made ;  but  the  court  refused  to  permit  any  amend- 
ment of  the  return  on  the  second  writ,  and,  instead  thereof, 
quashed  the  last  mentioned  writ  with  the  return  thereon,  and 
remanded  the  cause  to  the  rules,  to  be  further  proceeded  in. 

45.  Where,  upon  recognizance,  scire  facias  issued  against  two,  and 
both  died,  process  to  revive  awarded  against  representative  of  last 
survivor.  1  Rob.  Prac.  585.  Commo7iwealth  v.  Haines,  2  Va. 
Cas.  134. 

Both  of  the  defendants  having  died  pending  this  writ,  and  the 
defendant  E.  F.  being  the  last  survivor,  on  the  motion  of  the  at- 
torney for  the  commonwealth,  a  writ  of  scire  facias  is  awarded 
to  revive  this  case  against  G.  H.  executor  of  the  last  will  and 
testament  {or,  administrator  of  the  personal  estate)  of  the  said 
E.  F.  deceased,  returnable  here  at  the  next  term. 

46.  Entry  of  demurrer  to  scire  facias  and  joinder  therein.     1  Rob. 

Prac.  584. 

The  defendant,  by  his  attorney,  says  that  the  matters  con- 
tained in  the  said  writ  of  scire  facias,  in  manner  and  form  as  the 
same  are  therein  stated  and  set  forth,  are  not  sufficient  in  law 
for  the  .plaintiff  to  have  or  maintain  his  said  writ,  and  that  he 
the  said  defendant  is  not  bound  by  the  law  of  the  land  to  an- 
swer the  same  ;  and  in  this  demurrer  of  the  defendant,  the  plain- 
tiff joins. 

47.  Entry  of  plea  of  no  such  record,  and  general  replication  thereto. 

1  Rob.  Prac.  585. 

The  defendant,  by  his  attorney,  says  that  there  is  not  any  re- 
cord of  the  said  supposed  recovery  {or,  recognizance)  in  the  said 
writ  mentioned,  remaining  in  this  court,  in  manner  and  form  as 
in  the  said  writ  is  alleged ;  to  which  plea  the  plaintiff,  by  his 
attorney,  replies  that  there  is  such  a  record  of  the  said  reco- 
very {or,  recognizance)  remaining  in  this  court,  as  in  the  said 
writ  is  alleged.  {Or — to  which  plea  the  plaintiff,  by  his  attor- 
ney, replies  generally.) 
34 


266     "  Scire  facias  after  Judgment  or  upon  recognizance. 

48.  Oyer  of  record  ;  demurrer  to  scire  facias  ;  and  joinder.    1  Rob. 

Prac.  585,  6.     Wood  v.  Commonwealth,  4  Rand.  330. 

The  defendant,  by  his  attorney,  craves  oyer  of  the  record  of 
the  said  supposed  recovery  {or,  recognizance)  in  the  said  writ 
mentioned;  which  being  read  and  heard,  the  said  defendant 
says  that  the  matters  contained  in  the  said  writ  &c.  (as  in  No. 
46.) 

49.  Plea  that  execution  had  not  issued,  and  scire  facias  was  not  sued 
out  within  ten  years.  1  Rob.  Prac.  118.  119.  578.  Deneale  v. 
Stump^s  ex'ors,  8  Peters  528. 

In  &c.  C.  D.  ads  A.  B. — And  the  said  defendant,  by  his  at- 
torney, comes  and  defends  the  wrong  and  injury,  when  &c.  and 
says  that  the  judgment  in  the  said  writ  mentioned  ought  not  to 
be  revived,  because  he  says  that  execution  hath  not  issued  upon 
the  said  judgment,  and  the  said  writ  of  scire  facias  was  not  is 
sued  within  ten  years  next  after  the  date  of  the  said  judgment, 
but  after  more  than  ten  years  had  expired.  And  this  he  is  ready 
to  verify.  Wherefore  he  prays  judgment,  if  the  said  judgment 
ought  to  be  revived,  and  execution  awarded  the  plaintiff  there- 
upon. 

50.  Where  execution  had  issued  hut  no  return  was  made,  plea  that 
ten  years  had  elapsed.  1  Rob.  Prac.  118.  119.  578.  Fleming^ 
ex* or  v.  Dunlop  S^.  4  Leigh  338. 

and  says  that  the  plaintiff  ought  not  now  to  have  execu- 
tion of  the  judgment  in  the  said  writ  of  scire  facias  mentioned,  be- 
cause he  says  that  since  the  said  judgment  was  rendered,  to  wit, 
on  the  29th  day  of  June  1821,  execution  hath  issued  upon  the  said 
judgment,  and  no  return  is  made  thereon,  and  the  term  of  ten 
years  from  the  date  of  the  said  judgment  had  expired  before  the 
day  on  which  the  said  writ  of  scire  facias  issued,  and  more  than 
ten  years  had  also  elapsed  between  the  return  day  of  the  exe- 
cution so  issued  as  aforesaid  and  the  day  on  which  the  said  writ 
of  scire  facias  issued  ;  and  between  the  day  on  which  the  said 
judgment  was  rendered  and  the  day  on  which  the  said  writ  of 
scire  facias  issued,  no  execution  has  been  obtained  upon  the  said 
judgment,  other  than  that  before  mentioned,  nor  has  there  been 
any  motion  against  any  sheriff  or  other  officer,  or  his  or  their 
security  or  securities,  for  not  returning  the  said  execution  which 
so  issued  as  aforesaid.     And  this  he  the  said  defendant  is  ready 

to  verify.     Wherefore  he  prays  judgment  if  the  said ought 

now  to  have  execution  &c. 


Scire  facias  after  judgment  or  ujpon  recognizance.        267 

61.  Another  plea  under  same  statute,  more  briefly  drawn. 

because  he  says  that  since  the  said  judgment  was  ren- 
dered, only  one  execution  hath  issued  thereon,  to  wit,  a  writ  of 
^eri  facias,  which  issued  on  the  29th  day  of  June  1821,  and  upon 
the  said  execution  no  return  is  made,  and  the  plaintiff's  writ  of 
scire  facias  was  sued  out  after  the  term  of  ten  years  from  the 
date  of  the  said  judgment,  and  after  the  term  of  ten  years  from 
the  return  day  of  the  said  execution.     And  this  &c.  (as  last.) 

52.  Plea  under  same  statute  by  an  executor  or  administrator,  to  a 
scire  facias  issued  to  revive  a  judgment  obtained  against  dece- 
dent. 

'  and  says  that  the  plaintiff"  ought  not  to  have  execution 
of  the  judgment  in  the  said  writ  of  scire  facias  mentioned,  to  be 

levied  of  the  goods  and  chattels  of  the  said deceased, 

in  his  hands  to  be  administered,  because  he  says  that  &c.  (as  in 
either  of  the  two  last  forms.) 

53.  Plea  by  executor  or  administrator  that  scire  facias  was  issued 
against  him  after  the  expiration  of  five  years  from  his  qualifica- 
tion.    1  Rob.  Prac.  118.  119.  578. 

In  &c.  E.  F.  executor  {or,  administrator)  of  C.  D.  ads  A. 
B. — And  the  said  defendant,  by  his  attorney,  comes  and  de- 
fends the  wrong  and  injury,  when  &c.  and  says  that  the  said 
writ  of  scire  facias  ought  not  to  be  maintained  against  him  as 
executor  {or,  administrator)  as  aforesaid,  to  revive  the  said  judg- 
ment, because  he  says  that  the  said  scire  facias  was  issued 
against  him  as  executor  {or,  administrator)  as  aforesaid,  to  re- 
vive the  said  judgment,  after  the  expiration  of  five  years  from 
the  qualification  of  him  the  said  defendant  as  executor  {or,  ad- 
ministrator) as  aforesaid.  And  this  he  is  ready  to  verify. 
Wherefore  he  prays  judgment  if  the  said  plaintiff"  ought  to 
maintain  his  aforesaid  scire  facias  against  him,  to  revive  the  said 
judgment. 

54.  Entry  of  plea  of  payment,  with  general  replication  and  issue ; 

and  office  judgment  set  aside.     1  Rob.  Prac.  586. 

The  defendant,  by  his  attorney,  to  the  said  writ  o^  scire  facias 
pleads,  that  before  the  suing  out  the  said  writ,  he  had  paid  the 
principal,  interest  and  costs  recovered  by  the  judgment  therein 
mentioned  {or,  that  the  principal,  interest  and  costs  recovered 
by  the  judgment  therein  mentioned  had  been  paid) ;  to  which 


t 

268        Scire  facias  after  judgment  or  upon  recognizance. 

plea  the  plaintiff,  by  his  attorney,  replies,  that  the  said  princi- 
pal, interest  and  costs  were  not  paid  as  aforesaid,  and  this  he 
prays  may  be  enquired  of  by  the  country  ;  and  the  defendant 
likewise.  Whereupon  it  is  ordered  that  the  judgment  entered 
in  the  office  against  the  said  defendant  be  set  aside. 

65.  Entry  of  judgment  in  the  office,  when  it  becomes  final.     1  Rob. 

Prac.  586. 

The  judgment  by  default  obtained  in  the  office  not  being  set 
aside,  it  is  therefore  considered  that  the  plaintiff  may  have  exe- 
cution against  the  defendant  for  &c.  (concluding  the  entry  as  in 
one  of  the  forms  from  No.  36  to  43.) 

56.  On  a  scire  facias  assigning  new  breaches,  damages  assessed,  and 

judgment  for  plaintiff. 

This  day  came  the  plaintiff  by  his  attorney,  and  a  jury,  to 
wit,  A.  B,  &c.  being  sworn  diligently  to  enquire  of  damages  in 
this  cause,  upon  their  oath  do  say,  that  they  assess  the  damages 
which  the  plaintiff  hath  sustained  by  occasion  of  the  breaches 
of  the  condition  of  the  writing  obligatory,  assigned  in  the  said 
writ,  as  foUoweth  ;  that  is  to  say,  for  the  breach  by  the  said  F. 
in  not  paying  to  R.  W.  the  amount  of  an  execution  served  by 
the  said  F.  on  T.  E.  at  the  suit  of  the  said  W.  they  assess  the 
damages  to  $80.  and  for  the  breach  by  the  said  F.  \u  not  pay- 
ing to  J.  D.  the  amount  of  an  execution  served  by  the  said  jP.  on 
W.  P.  at  the  suit  of  the  said  D.  they  assess  the  damages  to  $  20. 
Therefore  it  is  ordered  that  it  be  added  as  a  further  rule  to  the 
judgment  recovered  in  this  cause  at  the  last  term,  that  the  same 
may  be  discharged  by  the  payment  of  the  damages  then  as- 
sessed and  the  costs  then  recovered,  and  by  the  damages  this 
day  assessed  and  the  costs  of  suing  forth  and  prosecuting  this 
writ,  and  by  such  other  damages  as  may  be  hereafter  assessed , 
upon  a  writ  or  writs  of  scire  facias  being  sued  out  thereon,  and 
new  breaches  assigned  by  any  person  or  persons  injured. 

57.  Special  bail  surrendering  principal  after  scire  facias,  judgment 

against  him  for  the  costs.     1  Rob.  Prac.  586. 

The  defendant  having,  after  this  writ  was  issued,  surrendered 
his  principal  within  the  time  limited  by  law  ;  by  consent  of  the 
parties  by  their  attorneys,  it  is  ordered  that  the  said  writ  be  dis- 
missed, and  that  the  defendant  pay  to  the  plaintiff  the  costs  ex- 
pended by  him  in  suing  forth  and  prosecuting  the  said  writ. 


Scire  facias  after  judgment  or  upon  recognizance.        269 

58.  Entry  of  judgment  where  there  is  a  confession.     1  Rob.  Prac. 

586. 

This  day  came  the  parties  by  their  attorneys,  and  the  defen- 
dants, relinquishing  their  former  plea,  say,  that  they  cannot 
gainsay  the  plaintiff's  having  such  execution  against  them  as  is 
sought  by  the  said  writ :  Therefore  it  is  considered  by  the  court 
that  the  plaintiff  may  have  execution  against  the  defendants  for 
&c.  (as  in  other  cases.) 

59.  Judgment  on  plea  of  no  su^h  record,  where  that  is  the  only  plea. 

1  Rob.  Prac.  587. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  record  of  the  supposed  recovery  {or,  recognizance)  in  the 
writ  aforesaid  mentioned  being  seen  and  inspected,  it  seems  to 
the  court  here  that  there  is  {or,  is  not)  such  a  record  of  the  said 
recovery  {or,  recognizance)  as  by  the  said  writ  is  supposed  : 
Therefore  it  is  considered  by  the  court  that  &c.  (as  in  other  cases 
where  final  judgment  is  given  for  plaintiff  or  defendant.) 

60.  Judgment  for  plaintiff  where,  besides  no  such  record,  there  is  a 

second  plea.     1  Rob.  Prac.  587. 

{Pursue  the  last  form,  to)  as  by  the  said  writ  is  supposed. 
Whereupon  came  a  jury,  to  wit,  A.  B.  &c.  who  being  elected, 
tried  and  sworn  the  truth  to  speak  upon  the  issue  joined  on  the 
defendant's  second  plea,  upon  their  oath  do  say,  that  on  the  said 
issue  they  find  for  the  plaintiff.  Therefore  it  is  considered  by 
the  court  that  &c.  (as  in  other  cases  where  final  judgment  is 
given  for  plaintiff.) 

61.  Judgment  for  defendant  where  issue  is  found  for  him. 

that  on  the  said  issue  they  find  for  the  defendant.  There- 
fore it  is  considered  by  the  court  that  the  plaintiff  take  nothing 
by  his  said  writ,  and  that  the  defendant  go  thereof  without  day, 
and  recover  against  the  plaintiff  his  costs  by  him  about  his  de- 
fence expended. 

62.  Fieri  facias  after  award  of  execution  upon  scire  facias  renew- 
ing judgment  for  debt  or  damages. 

We  command  you  that  of  the  goods  and  chattels  of  C.  D.  late 
in  your  bailiwick,  you  cause  to  be  made  the  sum  of  $  150.  with 
interest  thereon  to  be  computed  after  the  rate  of  six  per  centum 


270        Scire  facias  after  judgment  or  upon  recognizance. 

per  annum  from  the day  of till  payment,  and  $10.50 

cents,  which  A.  B.  lately  in  &c.  hath  recovered  against  the  said 
C.  D.  as  well  for  a  certain  debt  and  interest  thereon  (or,  as  well 
for  his  damages  which  he  sustained  by  &c.  and  for  interest  on 
those  damages)  as  for  his  costs  by  him  about  his  suit  in  that  be- 
half expended  ;  whereof  the  said  C.  D.  is  convict,  as  appears  of 
record  ;  and  also  $  20.  which  to  the  said  A.  B.  lately  in  our  said 
court,  were  adjudged  for  his  costs  by  him  expended  in  suing 
forth  and  prosecuting  against  the  said  C.  D.  our  writ  of  scire 
facias;  and  whereupon  it  is  considered  by  our  said  court  that 
the  said  A.  B.  have  execution  against  the  said  C.  D.  of  the  debt 
{or,  damages)  interest  and  costs  aforesaid ;  whereof  he  is  also 
convict,  as  appears  of  record.  And  that  you  have  &c.  (Or, 
And  how  &c.) 

63.  Fieri  facias  after  award  of  execution  against  executor  or  adminis- 
trator upon  scire  facias  reviving  Judgment  rendered  in  decedent's 
lifetime. 

that  of  the  goods  and  chattels  of  J.  R.  deceased,  late  in 

your  bailiwick,  in  the  hands  of  B.  R.  executor  of  the  last  will 
and  testament  {or,  administrator  of  the  personal  estate)  of  the 
said  J.  R.  deceased,  you  cause  to  be  made  the  sum  of  &c.  which 

A.  B.  lately  in  &c.  hath  recovered  against  the  said  J.  R.  in  his 
lifetime,  as  well  for  &c.  as  for  &c.  whereof  the  said  J.  R.  was 

convict,  as  appears  of  record;  also  $ ,  which  to  the  said 

&c.  and  whereupon  &c.  of  the  debt  {or,  damages)  interest  and 
costs  aforesaid,  to  be  levied  of  the  goods  and  chattels  of  the  said 
J.  R.  deceased,  in  the  hands  of  the  said  B.  R.  to  be  adminis- 
tered ;  whereof  he  is  convict,  as  appears  also  of  record.  And 
that  &c.     {Or,  And  how  &c.) 

64.  Fieri  facias  after  award  of  execution  in  favour  of  executor  or 
administrator  upon  scire  facias  reviving  judgment  obtained  by  de- 
cedent. 

No.  62.  or  63.  may  be  used,  as  may  best  suit  the  case.    Where 
the  plaintiff's  name  first  occurs,  instead  of  saying  "  which  A. 

B.  lately  in  &c.  hath  recovered,"  say,  "  which  A.  B.  in  his  life- 
time, in  &c.  recovered."  After  the  words  "  as  appears  of  re- 
cord," proceed  as  follows  :  •'  Also  $ ,  which  to  E.  F.  execu- 
tor of  the  last  will  and  testament  {or,  administrator  of  the  per- 
sonal estate)  of  the  said  A.  B.  deceased,  lately  in  &c.  were 
adjudged  &c.  and  whereupon  it  is  considered  by  our  said  court 
that  the  said  E.  F.  executor  {or,  administrator)  as  aforesaid, 
have  execution  &c. 


Scire  facias  after  judgment  or  upon  recognizance.        271 

65.   Elegit  after  award  of  execution  against  an  heir,  upon  scire  facias 
reviving  against  him  judgment  rendered  against  his  ancestor. 

Whereas  A.  B.  at  a  circuit  superior  court  of  law  and  chance- 
ry for  the  county  of  Henrico,  on  the day  of ,  before 

our  judge  of  the  said  court  held,  recovered  against  C.  D.  the 

sum  of ,  with  interest  thereon  &c.  till  payment,  and  $ , 

as  well  for  &c.  as  for  &c.  whereof  the  said  C.  D.  is  convict,  as 
appears  of  record.  And  the  said  A.  B.  has  chosen  to  have  de- 
livered to  him  a  moiety  of  all  the  lands  and  tenements  of  the 
said  C.  D.  to  have  and  to  hold  the  said  moiety  as  his  freehold, 
to  him  and  his  assigns,  until  he  shall  have  levied  thereof  the  debt 
{or,  damages)  interest  and  costs  aforesaid,  and  since  the  death  of 
the  said  C.  D.  has  sued  forth  and  prosecuted  a  writ  of  scire  fa- 
cias upon  the  said  judgment,  against  R.  B.  only  child  and  heir 
of  the  said  C.  D.  deceased  ;  whereupon  it  is  considered  by  our 
said  court  that  the  said  A.  B.  have  execution  against  the  said 
R.  B.  as  son  and  heir  of  the  said  C.  D.  deceased,  of  the  debt 

{or,  damages)  interest  and  costs  aforesaid,  and  also  for ,  the 

costs  expended  in  suing  forth  and  prosecuting  the  said  writ,  to 
be  levied  on  the  lands  and  tenements  whereof  the  said  C.  D. 
was  seized  at  the  day  of  obtaining  the  said  judgment,  or  at 
any  time  afterwards.  Therefore  we  command  you  that  you 
cause  to  be  delivered  a  moiety  of  all  the  lands  and  tenements, 
in  your  bailiwick,  whereof  the  said  C.  D.  was  seized  at  the  day 
of  obtaining  the  said  judgment,  or  at  any  time  afterwards,  by 
reasonable  price  and  extent,  to  have  and  to  hold  the  said  moiety 
to  him  the  said  A.  B.  as  his  freehold,  to  him  and  his  assigns,  ac- 
cording to  the  form  of  the  statute,  until  he  shall  have  levied 
thereof  the  debt  {or,  damages)  interest  and  costs  aforesaid  ;  and 
that  you  certify  our  said  judge,  under  your  own  seal  and  the 
seals  of  those  by  whose  oath  you  shall  make  this  extent  and  ap- 
praisement, how  you  shall  have  executed  this  writ,  on  the  first 
day  of  the  next  term.     And  have  then  &c. 

66.  Distritigas  and  f.  fa.  after  award  of  execution  against  an  exe- 
cutor or  administrator,  upon  scire  facias  reviving  judgment  in  de- 
tinue rendered  asainst  his  decedent. 


o' 


Whereas  J.  M.  W.  at  &c.  (reciting  the  judgment  as  in  No.  5.) 
whereof  the  said  A.  M.  was  convicted,  as  appears  of  record. 
And  whereas,  after  the  said  judgment  was  given,  the  said  A.  M. 
died,  having  first  made  his  last  will  and  testament,  and  thereof 
appointed  E.  F.  executor,  who  proved  the  same  and  took  upon 
himself  the  burthen  of  its  execution  {or — died  intestate,  and  ad- 
ministration of  his  personal  estate  has  been  granted  to  E.  F.) 


272        Scire  facias  after  Judgment  or  upon  recognizance, 

and  since  the  death  of  the  said  A.  M.  the  slaves  aforesaid  have 
come  to  the  hands  and  possession  of  the  said  E.  F.  executor 
(or,  administrator)  as  aforesaid,  and  the  said  J.  M.  W.  has  sued 
forth  and  prosecuted  against  him,  upon  the  said  judgment,  our 
writ  oi  scire  facias :  Whereupon  it  is  considered  by  our  said 
court  that  the  said  J.  M.  W.  have  execution  against  the  said  E. 
F.  for  the  slaves  aforesaid,  if  they  may  be  had,  but  if  not,  then 
the  prices  aforesaid  of  them,  or  of  such  of  them  respectively  as 

may  not  be  had,  and  also  for  $ ,  the  damages  and   costs 

aforesaid,  to  be  levied,  as  to  the  said  damages  and  costs,  of  the 
goods  and  chattels  of  the  decedent,  in  the  hands  of  the  said  E. 
F.  to  be  administered  ;  and  it  is  further  considered  that  the  said 
J.  M.  TV.  recover  against  the  said  E.  F.  his  costs  by  him  ex- 
pended in  suing  forth  and  prosecuting  the  said  writ,  to  be  levied 
also  of  the  goods  and  chattels  of  the  decedent,  in  the  hands  of 
the  said  E.  F.  to  be  administered ;  whereof  the  said  E.  F.  is 
convict,  as  appears  also  of  record.  Therefore  we  command 
you  that  you  distrain  the  said  E.  F.  by  all  his  lands  and  chat- 
tels in  your  bailiwick,  so  that  neither  he  the  said  E.  F.  nor  any 
one  by  him  do  lay  hands  on  the  same  until  you  shall  have  ano- 
ther command  from  us  in  that  behalf,  and  that  you  answer  to  us 
for  the  issues  of  the  same,  so  that  the  said  E.  F.  render  to  the 
said  J.  M.  W.  the  slaves  aforesaid,  if  they  may  be  had,  but  if 
not,  then  the  prices  aforesaid  of  them,  or  of  such  of  them  re- 
spectively as  may  not  be  had.  And  in  what  manner  you  shall 
have  executed  this  part  of  our  command,  make  known  &c.  at 
&c.  on  &c.  We  also  command  you  that  you  cause  to  be  levied 
of  the  goods  and  chattels  of  the  said  A.  M.  deceased,  late  in 
your  bailiwick,  in  the  hands  of  the  said  E.  F.  executor  {or,  ad- 
ministrator) as  aforesaid,  the  said  $ ,  the  damages  and  costs 

aforesaid,  recovered  by  the  judgment  aforesaid,  and  also  $ 

the  costs  expended  in  suing  forth  and  prosecuting  the  said  writ 
of  scire  facias ;  and  that  you  have  that  money  &c.  at  &c.  on  the 
same  day  before  mentioned.  And  have  then  there  this  writ. 
Witness  &c. 

67.  Fieri  facias  after    award  of  execution   upon  recognizance  of 
special  bail  in  action  for  debt  or  damages. 

that  of  the  goods  and  chattels  of  E.  F.   special  bail  for 

T.  C.  late  in  your  bailiwick,  you  cause  to  be  made  the  sum  of 
&c.  which  J.  P.  lately  in  &c.  recovered  against  the  said  T.  C. 

as  well  for  &c.  as  for  &c.  also  % ,  which  &c.  (as  in  No.  62.) 

and  whereupon  &c.  (as  in  No.  62.)  whereof  the  said  E.  F.  is 
convict,  as  appears  of  record. 


Scire  facias  after  judgment  or  upon  recognizance.        273 

68.  Execution  after  award  thereof  upon  recognizance  of  special  bail 

ill  detinue. 

Before  the  decision  in  Cloud  v.  Catlett's  executor,  4  Leigh  462.  the 
process  used  was  a  writ  of  distringas,  by  which  the  officer  was  com- 
manded that  he  should  distrain  the  bail  by  all  his  lands  and  chattels,  so 
that  neither  he  nor  any  for  him  should  thereto  lay  hands  until  some  other 
precept  was  had,  so  that  he  should  deliver  to  the  plaintiff  the  specific 
property,  if  it  might  be  had,  but  if  not,  then  the  alternative  value.  For 
the  damages  and  cosis,  execution  issued  as  in  any  other  case  of  a  pe- 
cuniary recovery.  It  seems,  however,  from  the  opinions  in  Cloud  v. 
Catlett's  executor,  that  the  plaintiff  is  not  at  liberty  to  issue  a  distringas 
against  the  bail,  to  compel  the  delivery  of  the  specific  property,  but  is 
to  have  execution  only  for  the  value,  damages  and  costs.  Under  this 
view,  his  process  must  of  course  be  a  fieri  facias,  elegit,  or  capias  ad 
satisfaciendum. 

69.  Execution  for  the  commonwealth,  upon  a  recognizance,  against 
the  goods  and  chattels,  lands  and  tenements.  1  Rob.  Prac.  587,  8. 

We  command  you  that  of  the  goods  and  chattels,  lands  and 
tenements  of  S.  H.  in  your  bailiwick,  you  cause  to  be  made 
$  2500.  which  the  said  S.  H.  by  recognizance  entered  into  by 
J.  H.  and  the  said  S.  H.  before  the  court  of  C.  county,  acknow- 
ledged himself  to  ov/e  to  W.  H.  C.  governor  of  the  common- 
wealth of  Virginia,  and  to  his  successors,  for  the  use  of  the  com- 
monwealth ;  also  $  3.57  cents,  which  to  J.  T.  governor  of  the 
commonwealth  of  Virginia,  and  successor  of  the  said  W.  H.  C. 
late  governor  of  the  said  commonwealth,  for  the  use  thereof,  {or, 
which  to  the  said  W.  H.  C.  governor  as  aforesaid,  for  the  use  of 
the  commonwealth)  in  &c.  were  adjudged  for  the  costs  expended 
in  suing  forth  and  prosecuting  against  the  said  S.  H.  upon  the 
said  recognizance,  our  writ  of  scire  facias  ;  and  whereupon  it  is 
considered  by  our  said  circuit  superior  court,  that  the  said  J.  T. 
governor  and  successor  as  aforesaid,  {or,  the  said  W.  H.  C.  go- 
vernor as  aforesaid)  for  the  use  of  the  said  commonwealth,  have 
execution  against  the  said  S.  H.  for  the  said  S2500.  of  his  goods 
and  chattels,  lands  and  tenements  to  be  levied,  and  also  that  the 
said  J.  T.  governor  and  successor  as  aforesaid  {or,  the  said  W. 
H.  C.  governor  as  aforesaid)  recover  against  the  said  S.  H. 
the  costs  aforesaid  ;  whereof  the  said  S.  H.  is  convict,  as  ap- 
pears of  record  ;  and  that  you  have  &c. 
35 


274  Motions  for  judgment  and  award  of  execution, 

CHAPTER  XXVI. 

MOTIONS    FOR   JUDGMENT    AND    AWARD    OF    EXECUTION. 


1.  Notice  of  motion  on  forthcoming  bond,     1  Rob.  Prac.  589,  90. 

591,  2. 

To  messrs.  C.  D.  and  E.  F. 

Gentlemen, 

A  bond  having  been  executed  by  you  to  me,  on 
the day  of ,  in  the  penalty  of  $ ,  with  a  con- 
dition whereby,  after  reciting  that  upon  a  judgment  obtained  by 
me  in  the  county  court  of  H.  against  the  said  C.  D.  I  had  sued 
out  a  writ  of  fieri  facias,  directed  to  the  sheriff  of  the  said 
county,  by  virtue  whereof  certain  goods  and  chattels  had  been 
taken  by  J.  K.  deputy  for  L.  M.  sheriff  of  the  said  county,  to 
satisfy  the  said  execution,  the  amount  whereof  at  the  date  of 
the  said  bond,  including  the  sheriff's  fee  and  commissions,  was 

$ ,  it  was  provided  that  if  the  said  C.  D.  should  have  the 

said  goods  and  chattels  forthcoming  on  the day  of , 

at ,  being  the  day  and  place  of  sale  appointed  by  the 

sheriff,  then  the  said  obligation  was  to  be  void  ;  and  the  said  C. 
D.  having  failed  to  deliver  the  said  goods  and  chattels  according 
to  the  condition  of  the  bond,  or  to  pay  the  money  mentioned  in 
the  execution  :  notice  is  hereby  given  to  you  and  each  of  you, 
that  on  the  first  day  of  the  next  term  of  the  said  county  court, 
1  shall  move  the  said  court  to  award  execution  upon  the  said 
bond,  in  my  behalf,  against  you  and  each  of  you,  for  principal, 
interest  and  costs.    Given  under  my  hand  this day  of . 

2.  Defendants  not  appearing,  award  of  execution  by  default.     1  Rob. 

Prac.  598,  9. 

A.  B.     plaintiff  ^  A  motion  on   a  bond  conditioned 

against  >  for  the  forthcoming,  on  the  day  of 

C.  D.  and  E.  F.  defendants.  )  sale,  of  property  taken  under  ex- 
ecution. 
This  day  came  the  plaintiff  by  his  attorney,  and  it  appearing, 
by  the  oath  {or,  affidavit)  of  a  witness,  that  the  defendants  have 
had  legal  notice  of  this  motion,  they  were  solemnly  called,  but 
came  not.     Whereupon,  the  execution  and  bond  aforesaid  being 


Motions  for  judgment  and  award  of  execution.  275 

produced  and  inspected,  it  is  considered  by  the  court  that  the 
plaintiff  may  have  execution  against  the  defendants  for  $  887.08 
cents,  the  penalty  of  the  said  bond,  and  his  costs  by  him  in  this 
behalf  expended.  And  the  said  defendants  in  mercy  &c.  But 
this  judgment  is  to  be  discharged  by  the  payment  of  $  443.54 
cents,  with  interest  thereon  to  be  computed  after  the  rate  of  six 
per  centum  per  annum  from  the  18th  day  of  May  1825  till  pay- 
ment, and  the  costs. 

3.  Entry  where,  after  execution  of  forthcoming  bond,  an  injunction 
was  obtained,  and  the  same  being  dissolved,  damages  are  included 
in  the  judgme?it.     1  Rob.  Prac.  599. 

may  have  execution  against  the  defendants  for  $ 

the  penalty  of  the  said  bond,  and  $ damages  according  to 

law  for  retarding  the  proceedings,  by  an  injunction,  from  the  18th 
day  of  July  1820  till  the  5th  day  of  February  1822,  and  also 
for  the  costs  by  the  said  plaintiff  in  this  behalf  expended.  And 
the  said  defendants  in  mercy  &c.     But  this  judgment  is  to  be 

discharged  by  the  payment  of  S ,  with  interest  thereon  to 

be  computed  after  the   rate  of  six  per  centum  per  annum  from 

the day  of till  the  18th  day  of  July  1820,  and  from 

the  5th  day  of  February  1822  till  payment,  and  the  damages 
and  costs  aforesaid. 

4.  Execution  awarded  by  consent  on  forthcoming  bond. 

This  day  came  the  parties  by  their  attorneys,  and  by  their 
consent  it  is  considered  &c.  (as  in  No.  2.  or  No.  3.) 

5.  Order  quashing  execution  and  forthcomiug  bond  because  of  defects 
in  execution.     1  Rob.  Prac.  601.  Couchv.  Miller,  2  Leigh  545. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
the  defendant  objected  to  the  said  bond,  because  of  defects  ap- 
parent on  the  face  of  the  execution  ;  and  the  court  being  of  opi- 
nion that  such  defects  exist,  it  is  ordered  that  the  said  execution 
and  bond  be  quashed. 

6.  Order  quashing  forthcoming  bond  as  faulty.     1  Rob.  Prac.  597. 

This  day  came  the  parties  by  their  attorneys,  and  the  defen- 
dant moved  to  quash  the  said  forthcoming  bond,  because  the 
same  is  faulty.  Whereupon,  the  parties  being  heard,  it  is  or- 
dered that  the  said  bond  be  quashed,  pursuant  to  the  said  motion. 


276  Motions  for  judgment  and  award  of  execution. 

7.  Shcriff^s  return  on  execution  amended,  by  stating  that  supersedeas 
was  received  before  day  of  sale ;  and  thereupon  motion  oveiyuled. 
1  Rob.  Prac.  596,  7.  RucJcer  v.  Harrison,  6  Munf.  181. 

This  day  came  the  parties  by  their  attorneys,  and  it  appear- 
ing that  the  sheriff  has  made  a  return  on  the  execution,  stating 
that  the  said  C.  D.  failed  to  deliver  up  the  property  according  to 
the  condition  of  the  bond,  and  the  said  sheriff  now  stating,  here 
in  court,  that  before  the  day  of  sale  he  received  a  writ  of  super- 
sedeas, issued  by  the  clerk  of  the  circuit  superior  court  of  law 
and  chancery  for  the  county  of  H.  in  the  name  of  the  said  C.  D. 
against  the  said  A.  B.  superseding  all  further  proceedings  upon 
the  judgment  on  which  the  said  execution  issued,  the  court  doth 
permit  him  to  amend  his  return,  and  state  the  fact  of  his  receiv- 
ing such  supersedeas  as  aforesaid.  And  thereupon  the  said  amend- 
ment being  made  accordingly,  the  motion  for  an  award  of  exe- 
cution on  the  said  bond  is  overruled. 

8.  Continuance  of  motion.     1  Rob.  Prac.  590.     Wilkinson  v.  Hen- 

drick,  5  Call  12.     Amis  v.  Koger,  7  Leigh  221. 

This  day  came  the  plaintiff  by  his  attorney,  and  it  appearing 
by  the  written  notice  to  the  defendant,  and  the  affidavit  at  the 
foot  thereof,  that  the  said  defendant  hath  had  legal  notice  of  this 
motion,  he  was  solemnly  called,  but  came  not.  Whereupon,  at 
the  instance  of  the  said   plaintiff",  it  is  ordered  that  this  motion 

be  continued  till next. 

Or: 

This  day  came  the  plaintiff  by  his  attorney,  and  the  defen- 
dant was  solemnly  called,  but  came  not.  Whereupon  &c.  (as 
before.) 

Or: 

This  day  came  the  parties  by  their  attorneys,  and  by  their 

consent  {or,  at  the  instance  of  the )  it  is  ordered  that  this 

motion  be  continued  till next. 

9.  Non  est  factum  pleaded ;  issue  joined  ;  verdict  for  plaintiff; 
and  judgment.     1  Rob.  Prac.  600. 

This  day  came  the  parties  by  their  attorneys,  and  the  defen- 
dant offered  a  plea  of  non  est  factum,  and  the  truth  thereof  being 
proved  by  his  oath,  the  said  plea  is  received ;  and  the  defen- 
dant having  put  himself  upon  the  country,  the  plaintiff  doth  the 
like.  Whereupon  came  a  jury,  to  wit,  A.  B.  &c.  who  being 
elected,  tried  and  sworn  the  truth  to  speak  upon  the  issue  joined, 


Motions  for  judgment  and  award  of  execution.  277 

upon  their  oath  do  say  that  on  the  said  issue  they  find  for  the 
plaintiff.  Therefore  it  is  considered  by  the  court  that  &c.  (as 
in  No.  2.) 

10.  Motion  heard,  and  continued  for  court  to  consider  of  its  judg- 

ment. 

This  day  came  the  parties  by  their  attorneys,  who  being  fully 

heard,  it  is  ordered  that  the  said  motion  be  continued  till , 

for  the  court  to  consider  of  its  judgment  to  be  given  thereupon. 

11.  After  time  taken  to  consider,  judgment  for  defendant  upon  the 

merits.     1  Rob.  Prac.  590. 

This  day  &c.  and  the  said  motion  having  been  maturely  con- 
sidered upon  its  merits,  the  court  is  of  opinion  that  the  same  is 
not  supported  by  the  evidence  :  Therefore  it  is  considered  that 
the  plaintiff  take  nothing  by  his  said  motion,  and  that  the  defen- 
dant go  thereof  without  day,  and  recover  against  the  plaintiff 
his  costs  by  hira  about  his  defence  expended. 

12.  After  time  taken   to  consider,  judgment  for  plaintiff  upon  the 
merits.  1  Rob.  Prac.  600.   Harpers  ^c.  v.  Patton,  1  Leigh  306. 

This  day  came  the  parties  by  their  attorneys,  and  the  said 
motion  having  been  maturely  considered,  the  opinion  of  the 
court  on  the  said  motion  is  for  the  plaintiff:  Therefore  it  is  con- 
sidered that  &c.  (as  in  No.  2.) 

13.  Entry  of  exceptions  to  judgment.     1  Rob.  Prac.  591. 

Memorandum.  To  the  judgment  given  for  the  plaintiff  on 
the  said  motion,  the  defendant  excepted,  and  tendered  a  bill  of 
exceptions,  setting  forth  all  the  evidence ;  which  bill  was  re- 
ceived, signed  and  sealed  by  the  court,  and  ordered  to  be  made 
part  of  the  record  upon  the  said  motion. 

14.  Bond,  where  goods  are  distrained  for  rent  and  restored  to  the 
debtor,  to  pay  at  the  end  of  three  months.     1  Rob.  Prac.  602. 

Know  all  men  &c.  (The  obligation  may  be  like  that  ante,  p. 
215.  No.  32.) 

The  condition  of  the  above  obligation  is  such,  that  whereas 
certain  goods  of  the  above  bound  C.  D.  have  been  lawfully  dis- 
trained, on  behalf  of  A.  B.,  by  G.  H.  one  of  the  constables  of 
the  county  of  H.  upon  certain  premises  in  the  said  county,  for 


278  Motions  for  Judgment  and  award  of  execution, 

rent  of  the  said  premises  in  arrear  from  the  said  C.  D.  to  the 

said  A.  B.  to  the  amount  of  $ ;  and  the  said  C.  D.  the 

tenant  of  the  premises  and  owner  of  the  goods,  desiring  to  re- 
plevy the  same,  by  suflScient  security  given  to  the  said  con- 
stable to  pay  the  said  money,  and  $ the  costs,  with  law- 
ful interest  for  the  same,  at  the  end  of  three  months,  this  bond 
is  entered  into  accordingly,  and  the  goods  aforesaid  are  restored 
to  the  said  C.  D.  Now  if  the  above  bound  C.  D.  his  heirs, 
executors  or  administrators,  shall,  at  the  end  of  three  months 
from  the  date  hereof,  well  and  truly  pay  to  the  said  A.  B.  his 

executors,  administrators  or  assigns,  $ ,  the  money  and 

costs  aforesaid,  with  lawful  interest  for  the  same  from  this  date, 
then  the  above  obligation  is  to  be  void,  otherwise  it  is  to  remain 
in  full  force. 

15.  Where  sale  is  made  of  goods  distrained,  bond  of  the  buyer  to  pay 
at  the  etid  of  three  months.  1  Rob.  Prac.  602,  3.  Sess.  Acts 
1834-5,  p.  44.  ch.  61.  -^  3. 

Know  all  men  &c.  (as  last.)  The  condition  of  the  above  obli- 
gation is  such,  that  whereas  certain  goods  of  C.  D.  have  been  law- 
fully distrained,  on  behalf  of  ^.  J5.,  by  G.  H.  one  of  the  constables 
of  the  county  of  H.  upon  certain  premises  in  the  said  county, 
for  rent  of  the  said  premises  in  arrear  from  the  said  C.  D.  to  the 
said  A.  B.  to  the  amount  of  $ ;  and  the  said  C.  D.  the  te- 
nant and  owner  of  the  goods  distrained,  having  failed,  within 
the  time  prescribed  by  law,  to  replevy  the  same,  by  sufficient 
security  given  to  the  said  constable  to  pay  the  money  and  all 
costs,  with  lawful  interest  for  the  same,  at  the  end  of  three 
months,  the  said  constable  has,  according  to  the  statute  in  such 
case,  sold  the  goods  so  distrained,  by  public  auction,  to  the 
highest  bidder,  for  money  to  be  paid  at  the  end  of  three  months, 
where  the  sum  is  ten  dollars  or  more ;  which  sale  was  made  on 
this  day,  and  at  the  said  sale,  part  of  the  said  goods  was  sold 
to  the  above  bound  E.  F.  for  $  11.  and  this  bond  is  entered  into 
for  the  same.  Now  if  the  above  bound  E.  F.  his  heirs,  execu- 
tors or  administrators,  shall,  at  the  end  of  three  months  from 
the  date  hereof,  well  and  truly  pay  to  the  said  A.  B.  his  execu- 
tors, administrators  or  assigns,  the  said  sum  of  $  11.  with  law- 
ful interest  thereon  from  this  date,  then  the  above  obligation  is 
to  be  void,  otherwise  it  is  to  remain  in  full  force. 


Motions  for  judgment  and  award  of  execution.  279 

16.  Notice  of  motion  on  three  months  bond  given  by  owner  or  buyer  of 
goods  distrained.     1  Rob.  Prac.  603,  4. 

To  messrs.  C.  D.  and  E.  F. 
Gentlemen, 

A  bond  having  been  executed  by  you  to  me,  on  the 
day  of ,  in  the  penalty  of  $ ,  with  a  condition  where- 
by, after  reciting  that  &c.  (set  forth  the  recitals)  it  was  provided 
that  &c.  (state  the  condition) ;  and  the  money  not  having  been 
paid  according  to  the  condition  of  the  bond,  and  the  said  bond 

having  been  lodged  in  the  court  of county;  notice  is  hereby 

given  to  you  and  each  of  you,  that  on  the  first  day  of  the  next 
term  of  the  said  county  court,  I  shall  move  the  justices  of  the  said 
court,  wherein  the  said  bond  is  so  lodged,  to  award  execution 
thereupon,  with  costs,  in  my  behalf  against  you  and  each  of  you. 
Given  under  my  hand  this day  of . 

17.  Ent7ies  upon  motions  on  three  months  hands. 

Like  those  on  forthcoming  bonds ;  which  see  ante,  No.  2.  4.  6.  8.  9. 
10.  11.  12.  13. 

18.  Notice  of  motion  by  surety  against  principal.     1  Rob.  Prac. 

604,  5. 

To  mr.  C.  D. 

Sir, 

Judgment  having  been  entered  up,  in  the  circuit  su- 
perior court  of  law  and  chancery  for  the  county  of  H.  at  the  suit 

of  ^.  B.  against  me  as  surety  for  you,  upon  a  bond,  and  $ , 

the  amount  of  the  said  judgment,  having  been  paid  and  dis- 
charged by  me  as  such  surety,  on  the day  of ;  notice  is 

hereby  given  you,  that  on  the  first  day  of  the  next  term  of  the 
said  court  wherein  the  said  judgment  was  so  entered  up,  I  shall 
move  the  said  court  for  judgment  agaiost  you,  for  the  full  amount 
which  has  been  paid  by  me  as  aforesaid,  with  interest  thereon 
from  the  time  the  same  was  so  paid.  Given  under  my  hand  this 
day  of . 

19.  Judgment  far  surety,  on  motion  by  him  against  principal.  1  Rob. 

Prac.  604,  5,  6. 

On  the  motion  of  L.  H.  against  T.  M. — This  day  came  the 
plaintiff  by  his  attorney,  and  it  appearing  by  the  affidavit  of  W. 
H.  that  the  defendant  hath  had  legal  notice  of  this  motion,  he 
was  solemnly  called,  but  came  not.     Whereupon,  the  evidence 


280  Motions  for  judgment  and  award  of  execution, 

adduced  by  the  plaintiff  being  heard,  it  seems  to  the  court,  from 
the  said  evidence,  that  the  plaintiff  was  surety  for  the  defendant, 
in  the  bond  upon  which  judgment  has  been  entered  up  in  this 
court  against  the  said  plaintiff  at  the  suit  of  A.  B.;  and  the  court 

is  also  satisfied,  from  the  said  evidence,  that  $ ,  the  amount  of 

the  said  judgment,  was  paid  and  discharged  by  the  plaintiff  on 

the day  of .    Therefore  it  is  considered  by  the  court 

that  the  plaintiff  recover  against  the  defendant  $ ,  the  amount 

so  paid,  with  interest  thereon  to  be  computed  after  the  rate  of 
six  per  centum  per  annum  from  the day  of till  pay- 
ment, and  the  costs  by  the  said  plaintiff  in  this  behalf  expended. 
And  the  said  defendant  in  mercy  &c. 

20.  Judgment  for  surety,  on  motion  by  him  against  executor  or  admi- 

nistrator of  principal.     1  Rob.  Prac.  604,  5,  6. 

On  the  motion  of  E.  F.  against  G.  H.  executor  {or,  adminis- 
trator) of  C.  D. — This  day  &c.  Whereupon  &c.  it  seems  &c. 
that  the  plaintiff  was  surety  for  the  defendant's  testator  (or,  in- 
testate) in  the  bond  &c.  (as  last,  to  "  in  this  behalf  expended") 
to  be  levied  of  the  goods  and  chattels  of  the  decedent,  in  the 
hands  of  the  defendant  to  be  administered.  And  the  said  de- 
fendant in  mercy  &c. 

21.  Fi.  fa.  after  judgment  for   surety  on   motion   by  him  against 

principal. 

that  of  the  goods  and  chattels  of  T.  M.  late  in  your 

bailiwick,  you  cause  to  be  made  the  sum  of.  $ ,  which  J.  R. 

lately  in  &c.  hath  recovered  against  the  said  T.  M.  being  the 
amount  of  a  judgment  in  the  said  court  against  the  said  J.  R. 
at  the  suit  of  A.  B.  upon  a  bond  in  which  the  said  J.  R.  was 
surety  for  the  said  T.  M.  and  which  amount  the  said  J.  R.  paid  ; 
with  interest  thereon  to  be  computed  after  the  rate  of  six  per 

centum  per  annum  from  the day  of till  payment ; 

also  $ ,  which  to  the  said  J.  R.  in  the  same  court  were  ad- 
judged for  his  costs  by  him  in  that  behalf  expended :  whereof 
the  said  T.  M.  is  convict  as  appears  of  record. 

22.  Fi.  fa.  after  jiidgment  for  surety  on  motion  by  him  against  exe- 

cutor or  administrator  of  principal. 

'  that  of  the  goods  and  chattels  of  T.  F.  deceased,  late 

in  your  bailiwick,  in  the  hands  of  W.  R.  F.  and  T.  M. 
F.  executors  of  the  last  will  and  testament  {or,  administra- 
tors of  the   personal  estate)  of  the  said  T.  F.  deceased,  you 


Motions  for  judgment  and  award  of  execution,  281 

cause  to  be   made  the  sum  of  % ,  which  T.  P.  lately  in 

&c.  hath  recovered  against  the  said  W.  R.  F.  and  T.  M.  F.  ex- 
ecutors {or,  administrators)  as  aforesaid,  being  &c.  (as  last); 
whereof  the  said  W.  R.  F.  and  T.  M.  F.  executors  {or,  admi- 
nistrators) as  aforesaid,  are  convict  as  appears  of  record. 

23.  Notice  of  motion  by  surety  against  cosurety.     1  Rob.  PraC.  607. 

To  mr.  E.  F. 

Sir, 

C.  D.  having  become  insolvent,  and  you  and  my- 
self being  the  sureties  of  the  said  C.  D.  jointly  bound  with 
him  in  a  bond  to  A.  B.  for  the  payment  of  money,  and  judg- 
ment having  been  obtained,  in  the  circuit  superior  court  of  law 
and  chancery  for  the  county  of  H.  upon  the  said  bond,  against 
me  as  surety  as  aforesaid,  for  &c.  (describing  the  judgment) ; 
notice  is  hereby  given  you,  that  on  the  first  day  of  the  next  term 
of  the  said  court  wherein  judgment  has  been  so  obtained,  I  shall 
move  the  said  court  to  grant  judgment  and  award  execution 
against  you,  for  your  share  and  proportion  of  the  debt,  interest 
and  costs  recovered  by  the  judgment  aforesaid.  Given  under 
my  hand  this day  of .  (Signed)         G.  H. 

Note.  The  first  section  of  the  act  in  1  R.  C.  1819,  p.  460.  ch.  116. 
which  gives  a  motion  to  the  surety  against  the  principal  debtor  or  his 
representatives,  only  authorizes  the  motion  where  "  the  amount  of  such 
judgment  or  execution,  or  any  part  thereof,  hath  been  paid  or  discharged 
by  such  security  or  securities,  his,  her  or  their  heirs,  executors  or  ad- 
ministrators." And  yet  the  second  section,  which  gives  a  motion  to  a 
surety  against  the  other  obligors  and  their  representatives,  contains  no 
such  language.  No  good  reason  is  perceived  for  this  difference.  But 
it  has  nevertheless  been  deemed  sufficient,  in  making  a  form  adapted  to 
the  second  section,  that  it  should  state  such  a  case  as  comes  within  the 
terms  of  that  section. 

24.  Judgment  for  surety^  on  motion  by  him  against  a  cosurety. 

{As  in  No.  ]  9.  to)  it  seems  to  the  court,  from  the  said  evidence, 
that  C.  D.  has  become  insolvent,  and  that  the  plaintiff  and  de- 
fendant were  the  sureties  of  the  said  C.  D.  jointly  bound  with 
him  in  a  bond  to  A.  B.  for  the  payment  of  money,  and  that 
judgment  has  been  obtained  in  this  court,  upon  the  said  bond, 
against  the  plaintiff,  for  &c.  Therefore,  on  the  motion  of  the 
plaintiff,  it  is  considered  by  the  court  that  the  said  plaintiff  re- 
cover and  have  execution  against  the  defendant  for  $ ,  being 

the  said  defendant's  share  and  proportion  of  the  said  debt,  with 
interest  &c.  (as  in  No.  19.) 
36 


282  Motions  for  judgment  and  award  of  execution. 

25.  Judgment  for  surety,  on  motion  by  him  against  executor  or  ad- 

ministrator of  cosurety. 

{As  in  No.  19.  to)  it  seems  to  the  court,  from  the  said  evidence, 
that  C.  D.  has  become  insolvent,  and  that  the  plaintiff  and  the 
defendant's  testator  {or,  intestate)  were  the  sureties  &c.  (as  in 
No.  24.  to)  recover  and  have  execution  against  the  defendant  for 

$ ,  being  the  share  and  proportion  of  the  said  debt  of  the 

defendant's  testator  (or,  intestate),  vi^ith  interest  &c.  (as  in  No. 
19.)  to  be  levied  &c.  (as  in  No.  20.) 

26.  Notice  of  motion  by  bail  against  priricipal.     1  Rob.  Prac.  607. 

To  mr.  C.  D. 

Sir, 

Judgment  having  been  entered  up,  in  the  circuit  su- 
perior court  of  law  and  chancery  for  the  county  of  H.  on  the 

day  of ,  against  me  as  special  bail  for  you  at  the 

suit  of  A.  B.,  and  $ ,  the  amount  of  the  said  judgment, 

having  been  paid  and  discharged  by  me  on  the day  of 

;  notice  is  hereby  given  you,  that  on  the  first  day  of  the 

next  term  of  the  said  court  wherein  judgment  has  been  so  en- 
tered up  against  me,  I  shall  move  the  said  court  for  judgment 
against  you,  for  the  full  amount  of  what  has  been  so  paid  by 
me.     Given  under  my  hand  this day  of . 

27.  Notice  of  motion  by  a  turnpike  company  against  a  delinquent 

stockholder.     1  Rob.  Prac.  607. 

To  mr.  C.  D. 

Sir, 

The  president  and  directors  of  the company 

having,  by  resolution  adopted  on  the day  of ,  re- 
quired from  the  stockholders  an  advance  of  $ on  each  share, 

and  having  advertised  the  said  requisition  in  the ,  a  news- 
paper printed  at  the  place  appointed  by  the  stockholders  for 
their  general  meetings,  and  you  having  failed  to  pay,  within  one 
month  after  the  same  was  advertised,  the  sum  required  of  you 

by  the  said   resolution,  amounting,  on  your shares,  to 

$ ,  the  president  and  directors,  after  giving  one  month's  no- 
tice of  the  time  and  place  of  sale,  by  advertisement  in  the  same 
newspaper,*  sold  your  said  ■        —  shares  at  public  auction  on 

the day  of ,  when became  the  purchaser 

thereof  at  the  price  of  $ ,  to  whom  the  same  have  been 

conveyed.     The  said  sale  not  having  produced  the  sum  required 

to  be  advanced,  with  $ the  incidental  charges  attending 

the  sale,  and  you  being  an  inhabitant  of  the  county  of  if.  notice 


Motions  for  judgment  and  award  of  execution,  283 

is  hereby  given  you,  that  on  the  first  day  of  the  next  term  of  the 
court  of  the  said  county  of  H.  the  president  and  directors  of  the 
said  company  will  move  the  said  court  for  judgment  against  you 

for  the  balance  of  $ .     Dated  this day  of . 

On  behalf  of  the  president  and  directors. 

*  If  the  shares  were  offered  for  sale  and  there  were  no  bidders — 

After  the  words  "  by  advertisement  in  the  same  newspaper," 

proceed  as  follows  :  "  offered  the  said shares  for  sale  at 

public  auction,  on  the day  of ,  and  there  were  no 

bidders  therefor.  You  being  an  inhabitant  of  the  county  of  H., 
notice  is  hereby  given  you,  that  on  the  first  day  of  the  next  term 
of  the  court  of  the  said  county,  the  president  and  directors  of 
the  said  company  will  move  the  said  court  for  judgment  against 

you  for  $ the  sum  required  to  be  advanced  as  aforesaid, 

with  $ the  incidental  charges  attending  the  said  attempt  to 

sell,  amounting  together   to  $ .     Dated  this  day  of 


28.  Notice  of  motion  by  the  Mutual  Assurance  Society^  against  a 
person  insured,  for  quotas.  Kane  v.  M,  A.  Society,  6  Cranch 
192.  Atkinson  v.  Same,  Id.  202.  M.  A.  Society  v.  Korn  Sfc.  7 
Cranch  396.  Same  v.  Walls's  ex'or,  1  Wheat.  279.  Same  v. 
Faxon  Sfc.  6  Wheat.  606.  Carried  admWs  v.  M.  A.  Society,  4 
Hen.  &  Munf.  315.  Greenhow  v.  Barton,  1  Munf  590.  Green- 
how  V.  Buck,  5  Munf  263.  Stratton  v.  M.  A.  Society,  6  Rand. 
22.  M.  A.  Society  v.  Stone  ^c.  3  Leigh  218.  Farmers  Bank  v. 
M.  A.  Society  Sfc.  4  Leigh  69. 

To  mr.  W.  M. 

Sir, 

Take  notice  that  on  the day  of  the  next 

term  of  the  court  of  H.  county,  The  Mutual  Assurance  Society 
against  fire  on  buildings  of  the  state  of  Virginia  vvill,  by  their 
attorney,  move  the  said  court  for  judgment  and  award  of  execu- 
tion against  you  for  the  sum  of  S ,  that  being  the  amount  of 

the  quotas  of  the  years  1820  and  1821,  due  to  the  said  society 

per  declaration  numbered ,  and  filed  in  the  general  office  of 

assurance,  and  for  interest  on  $ ,  part  thereof,  from  the 

day  of 1820,  and  on  $ ,  the  residue  thereof,  from 

the day  of 1821,  until  payment,  with  costs,  dama- 
ges and  expenses  according  to  law  and  the  rules  and  regulations 
of  the  said  society.  J.  R.  principal  agent 

of  the  said  society. 
General  office  of  assurance,        > 
.Richmond,  the day  of .  > 


284  Motions  for  judgment  and  award  of  execution. 

29.  Notice  of  motion  by  president  and  directors  of  literary  fund 
against  treasurer  of  school  commissioners  and  his  sureties.  1  Rob. 
Prac.  607.  Naylor  v.  President  Sfc.  of  Literary  Fund,  5 
Leigh  71. 

To  A.  B.  &c.  (naming  the  treasurer  and  his  sureties.) 
Gentlemen, 

The  school  commissioners  for  the  county  of /Z.  having, 

on  the  day  of ,  appointed  the  said  A.  B.  one  of  their 

own  body,  treasurer,  who,  on  the day  of ,  gave  bond, 

with  the  said his  sureties,  in  the  court  of  the  said  coun- 
ty, payable  to  the  president  and  directors  of  the  literary  fund, 
in  the  penalty  of  $2000.  conditioned  for  the  faithful  application 
of  and  accounting  for  all  moneys  which  might  come  to  his  hands 
by  virtue  of  his  office,  and  the  sum  of  $ having  after- 
wards come  to  the  hands  of  the  said  A.  B.  in  virtue  of  his  said 
office,  and  the  said  A.  B.  having,  by  an  order  of  the  said  com- 
missioners, made  on  the  day  of ,  been  required  to 

pay  the  same  as  follows,  that  is  to  say,  (here  specify  to  whom 
and  in  what  sums  the  money  was  required  to  be  paid),  and  the 

said  treasurer  having,  on  the day  of ,  failed  to  pay 

the  said  money  to  the  order  of  the  said  commissioners,  when 
duly  required  thereto  :  notice  is  hereby  given  you,  that  on  the 
first  day  of  the  next  term  of  the  court  of  the  said  county  of  H. 
a  motion  will  be  made  in  the  name  of  the  president  and  direc- 
tors of  the  literary  fund,  in  the  said  court,  for  a  judgment  against 
you  tor  the  said  money,  with  ten  per  centum  per  annum  da- 
mages thereon  from  the  time  of  the  failure  aforesaid  till  pay- 
ment, and  for  the  costs.     Dated  this day  of 


..  M.  Sec.  i 


commissioners  of 
schools  for  the 
county  of  H. 


30.  Notice  of  motion  by  jailor  against  creditor  for  jail  fees, 
1  Rob.  Prac.  608. 

To  mr.  A.  B, 
Sir, 

Having,  on  the day  of ,  notified  you  in  wri- 
ting, that  C.  D.  was  confined  in  the  jail  of  the  county  of  H.  upon 
^  writ  o^  cayias  ad  satisfaciendum  at  your  suit,  and  having,  at  the 
termination  of  the  first  sixty  days  of  the  said  C.  D.^s  imprison- 

njent,  demanded  of  you  $ ,  the  amount  of  my  account 

for  his  maintenance,  and  you  having  failed  to  make  payment 
thereof;  I  now  give  you  notice,  that  on  the  first  day  of  the 
next  term  of  the  court  of  the  said  county  of  H.  I  shall  move  the 


Motions  for  judgment  and  award  of  execution.  285 

said  court  for  judgment  against  you  for  the  said  $ ,  the 

amount  of  the  account  aforesaid.     Given  under  my  hand  this 

day  of . 

E.  F,  sheriff  and  jailor  of 
the  county  of  H. 

31.  Another  notice  of  motion  for  jail  fees,  against  creditor  who  re- 
sides out  of  the  county  and  has  no  agent  in  it.  1  R.  C.  1819,  p. 
544.  "^  54.     1  Rob.  Prac.  550.  60S. 

To  J.  C. 

Sir, 

A  writ  of  capias  ad  satisfaciendum  from  the  circuit  supe- 
rior court  of  law  and  chancery  for  the  county  of  G.  in  your  favour 
against  J.  S.  S.  by  the  name  of  J.  S.  S.  acting  executor  of  J. 
S.  S.  senior  deceased,  bearing  date  the  5th  day  of  P'ebruary 
1834,  and  directed  to  the  sheriff  of  JZ.  county,  was  executed  by 
the  said  sheriff  on  the  said  J.  S.  S.  the  ISth  day  of  February 
1834,  and  he  was  thereupon  committed  to  the  jail  of  ii.  county. 
Afterwards,  to  wit,  on  the  15th  of  May  1834,  the  said  J.  S.  S. 
entered  into  a  prison  bounds  bond  with  J.  M.  C.  his  surety,  in 
the  penalty  of  $  1194.18  cents,  conditioned  as  the  law  directs, 
and  he  was  thereupon  permitted  to  go  out  of  prison  in  the  man- 
ner authorized  by  law.  After  the  expiration  of  the  lime  during 
which  the  said  J.  S.  S.  was  entitled  to  the  rules  or  bounds  of 
the  prison,  to  wit,  on  the  21st  of  May  1835,  he  rendered  his 
body  to  prison,  and  has  since  been  closely  confined  in  jail. 

As  your  residence  is  out  of  the  county  of  H.  and  you  have 
named  no  person  in  the  county  to  be  your  agent  for  the  purpose 
of  receiving  notices  from  the  sheriff,  I  have  not  had  it  in  my 
power  heretofore  to  notify  you  of  the  imprisonment  of  the  said 
J.  S.  S.  My  account  for  his  maintenance  from  the  18th  of 
February  1834  to  the  15th  of  May  following,  and  from  the  21st 
of  May  1835  to  the  21st  of  July  1835,  is  hereto  subjoined.     I 

now  demand  of  you dollars  and cents,  the  amount  of 

the  said  account,  and  shall  move  the  court  of  iJ.  county,  on  the 
first  monday  in  September  next,  for  judgment  against  you  for 
the  said  amount.  Given  under  my  hand  this  8th  day  of  August 
1835. 


286  Motions  for  Judgment  and  award  of  execution. 

32.  Notice  of  motion  by  creditor  against  debtor  for  jail  fees. 
1  Rob.  Prac.  60S. 

To  mr.  CD. 

Sir, 

In  consequence  of  your  remaining  confined  in  the 

jail  of  the  county  of  H.  for  sixty  da3's  from  the day  of' 

,  under  a  writ  of  capias  ad  satisfaciendum  at  my  suit,  the 

jailor  of  the  said  county,  by  motion  to  the  court  thereof,  recover- 
ed a  judgment  against  me,  on  the day  of ,  for  $ , 

the  amount  of  the  prison  fees  chargeable  for  your  maintenance, 

and  I  have  been  compelled  to  pay  the  same  ;  to  wit,  on  the 

day  of .     Notice  is  therefore  given  j^ou,  that  on  the  first 

day  of  the  next  term  of  the  court  of  the  said  county,  I  shall 
move  the  said  court  for  judgment  against  you  for  the  amount 
which  I  have  lawfully  paid  as  aforesaid  for  your  maintenance, 

with  interest  and  costs.     Given  under  my  hand  this day 

of . 

33.  Notice  of  motion  by  client  against  attorney  for  m,oney  received. 
I         A  1  Rob.  Prac.  608. 

i  ,,    /To  mr.  E.  F. 

f^  ^^^        Sir, 

t.-v^i^-'^n''  The  sum  of  $ having  been  received  by  you  as 

my  attorney,  on  the day  of ,  from  the  sheriff  of  the 

»  n^^county  of  H.  under  an  execution  sued  out  of  the  court  of  the 
»_;■    said  county,  upon  a  judgment  therein   rendered  on  my  behalf 

"^^  against  C.  D.  and  payment  of  the  money  so  received  having 
been  demanded  of  you,  and  you  having  refused  to  pay  the  same 
when  so  demanded ;  notice  is  hereby  given  you,  that  on  the 
first  day  of  the  next  term  of  the  court  of  the  said  county,  I  shall 
move  the  said  court  to  render  judgment  against  you  for  the  mo- 
ney so  received,  and  to  award  damages  in  lieu  of  interest,  not 
exceeding  fifteen  per  centum  per  annum,  from  the  time  of  your 
receiving  the  said  mone}'^  until  it  shall  be  paid.  Given  under 
my  hand  this day  of . 

34.  Notice  of  motion  by  overseers  of  the  poor  against  a  predecessor  in 
ofce.  2  R.  C.  1819,  p.  270.  271.  '^  22.  23.  Chapline  v.  Over- 
seers of  poor,  7  Leigh  231. 

To  C.  D. 

Sir, 

The  overseers  of  the  poor  of  the  county  of  O.  now 

in  office,  having,   at  their  annual  meeting  in ,   settled 

the  accounts  of  the  former  overseers,  and  it  being  thereby  ascer- 


Motions  for  judgment  and  award  of  execution.  287 

tained  that  a  balance  of  $ is  in  your  hands,  which  you 

have  failed  to  pay  to  the  overseers  of  the  poor  now  in  office,  al- 
though the  sanie  has  been  demanded  of  you  ;  notice  is  hereby 
given  you,  that  on  the  first  day  of  the  next  term  of  the  court  of 
the  said  county,  we,  the  overseers  of  the  poor  of  the  said  coun- 
ty now  in  office  as  aforesaid,  shall  move  the  said  court  to  grant 
judgment  against  you  for  the  said  sum  so  due  from  you,  with 
costs.     Dated  this day  of . 

35.  Notice  of  motion  against  sheriff  and  sureties  for  poor  rates  col- 

lected.    1  Rob.  Prac.  609. 

To  A.  B.  &c.  (naming  the  sheriff  and  his  sureties.) 
Gentlemen, 

The  poor  rates  for  the  county  of  H.  placed,  on  the 

day  of ,  in  the  hands  of  the  said  A.  B.  as  sheriff 

aforesaid  for  collection,  amounting  to  $ ,  and  the  said  A.  B. 

having  failed  to  account  for  and  pay  the  poor  rates  so  placed  in 
his  hands,  to  the  overseers  of  the  poor  of  the  said  county,  or  to 
their  order,  at  the  times  and  in  the  manner  prescribed  by  law  ; 
notice  is  hereby  given  you,  that  on  the  first  day  of  the  next  term 
of  the  court  of  the  said  county,  a  motion  will  be  made,  in  the 
name  of  the  overseers  of  the  poor  of  the  said  county,  for  judg- 
ment against  you  for  whatever  sum  or  sums  of  money  may  be 
due  and  in  arrear  from  the  said  A.  B.  as  sheriff  as  aforesaid, 
on  account  of  the  said  poor  rates,  together  with  interest  thereon 
from  the  time  when  due  until  paid,  and  costs ;  and  moreover, 
for  the  default  of  the  said  A.  B.  as  sheriff  as  aforesaid,  the  court 
will  be  asked  to  render  judgment  against  him  for  damages  on 
the  principal  sum  due,  not  exceeding  the  rate  of  fifteen  per 
centum  per  annum,  in  addition  to  the  interest  aforesaid,  to  be 
computed  during  the  same  time.     Dated  this day  of . 

36.  Notice  of  motion  against  sheriff  for  failing  to  pay  county  levy. 

1  Rob.  Prac.  609. 

To  A.  B.  &c.  (naming  the  sheriff  and  his  sureties.) 
Gentlemen, 

The  justices  of  the  county  of  H.  having,  at  their 
court  held  in  the  month  of last,  laid  a  levy  and  assess- 
ment according  to  law  on  the  tithable  persons  in  their  county, 

and  of  the  sum  to  be  assessed  on  the  tithables,  $ having 

been  appropriated  by  the  court  to  me,  and  you  the  said  A.  B. 
the  sheriff  charged  with  the  collection  of  the  county  levy,  having 
hitherto  wholly  failed  to  pay  the  said  sum  of  $ to  me ;  no- 
tice is  hereby  given  you,  that  on  the  first  day  of  the  next  term 
of  the  court  of  the  said  county,  I  shall  move  the  said  court  for 


288  Motions  for  Judgment  and  award  of  execution. 

judgment  against  you  for  the  sum  due  me,  with  interest  therein 
from  the day  of ,  when  the  same  was  lawfully  de- 
manded, till  paid,  and  costs  ;  and  moreover,  for  the  default  of 
the  said  A.  B.  as  sheriff  as  aforesaid,  the  said  court  will  be 
asked  to  render  judgment  against  him  for  damages  not  exceed- 
ing the  rate  of  fifteen  per  centum  per  annum.  Given  under  my 
hand  this day  of . 

37.  Notice  of  motion  against  sheriff  for  failing  to  render  account  of 
county  levy.     1  Rob.  Prac.  609. 

To  A.  B.  sheriff  of  the  county  of  H. 
Sir, 

The  justices  of  the  county  of  H.  having,  at  their 
court  held  in  the  month  of last,  laid  a  levy  and  assess- 
ment according  to  law  on  the  tithable  persons  in  their  county, 
and  you  the  said  A.  B.  as  sheriff  as  aforesaid,  having  been 
charged  with  the  collection  of  the  levy,  and  having,  by  an  order 

of  the  said  court  made  on  the day  of  ,  been  required 

to  render  to  the  said  court,  on  the  first  day  of  the  then  next  term, 
a  fair  and  just  account  of  the  said  levy,  and  having  failed  to 
render  such  account;  notice  is  hereby  given  you,  that  on  the 
first  day  of  the  next  term  of  the  circuit  superior  court  of  law 
and  chancery  for  the  said  county,  a  motion  will  be  made  to  the 
said  court  to  render  judgment  against  you,  according  to  law,  for 
a  fine  not  exceeding  two  hundred  dollars,  for  your  said  offence. 

Dated  this day  of . 

On  behalf  of  the  county  of  H. 
C.  D.  attorney  for  the  said  county. 

Z8.  Notice  of  motion  against  an  officer  for  cleric's  fees  collected. 
1  Rob.  Prac.  609. 

To  A.  B.  sheriff  of  the  county  of  H. 
Sir,- 

I,  C.  D.  clerk  of  the  circuit  superior  court  of  law  and 
chancery  for  the  county  of  H.  (or,  of  the  court  of  H.  county) 
having,  on  the day  of  ,  delivered  to  you  my  ac- 
counts of  fees  due  from  persons  residing  in  the  said  county, 

amounting  together  to  % ,  and  you  having  failed,  on  or 

before  the  first  day  of  November  last,  to  account  with  me  for 
the  said  fees,  and  pay  the  same,  abating  your  commission  and 
other  proper  allowances  ;  notice  is  hereby  given  you,  that  on  the 
first  day  of  the  next  term  of  the  court  of  the  said  county  of  fl. 
I  shall  move  the  said  court  for  judgment  against  you  for  the  sum 
wherewith  you  are  chargeable  on  account  of  the  said  fees,  to- 
gether with  damages  thereon,  not  exceeding  fifteen  per  centum 


Motions  for  judgment  and  award  of  execution.  289 

per  annum  from  the  time  when  they  ought  to  have  been  paid 
till  the  judgment  shall  be  discharged.  Given  under  my  hand 
this day  of . 

39.  Notice  of  motion  against  oj^cer  for  not  returning  execution. 
J  Rob.  Prac.  610,  11. 

To  A.  B.  sheriff  of  the  county  of  H. 

Sir, 

A  writ  oi  feri  facias  having  issued  from  the  oflQce  o{  H. 

county  court,  on  the day  of ,  upon  a  judgment  in  ray 

name  against  C.  D.  for  S ,  with  interest  thereon  to  be 

computed  after  the  rate  of  six  per  centum  per  annum  from  the 

day  of till  payment,  and  $ costs,  which  writ  was 

returnable  to  the  first  day  of  the  then  next term,  and  the 

same  having  come  into  the  possession  of your  deputy, 

and  he  having  failed  to  return  the  same  to  the  office  from  whence 
it  issued,  on  or  before  the  return  day  thereof;  notice  is  hereby 
given  you,  that  on  the  first  day  of  the  next  term  of  the  court  of 
the  said  county,  I  shall  move  the  said  court  to  fine  you,  accord- 
ing to  law,  for  the  failure  to  return  the  said  execution..  Given 
under  my  hand  this day  of . 

If  one  fine  has  already  been  imposed — 

(As  last,  to  "  on  or  before  the  return  day  thereof")  and  the 

said  court  having,  on  the day  of ,  fined  you  $ 

for  the  failure  to  return  the  said  execution,  and  the  same  not 
being  yet  returned  ;  notice  is  hereby  given  you,  that  on  &c.  I 
shall  move  the  said  court  to  impose  a  further  fine  upon  you,  ac- 
cording to  the  statute  in  such  case  made,  for  the  continued  fail- 
ure to  return  the  said  execution.  Given  under  my  hand  this 
— —  day  of . 

If  the  officer  return  the  writ  without  noting  how  he  hath  executed  it. 
1  Rob.  Prac.  612,  13. 

(After  the  words  "  having  come  into  the  possession  of 

your  deputy,"  proceed  as  follows :)  and  he  having  returned  it  to 
the  office  from  whence  it  issued,  without  noting  thereon  how  he 
hath  executed  the  same;  notice  is  hereby  given  you,  that  on  &c. 
I  shall  move  the  said  court  to  fine  you,  according  to  law,  for  the 
failure  to  make  a  proper  return  upon  the  said  execution.    Given 

under  my  hand  this day  of . 

37 


290  Motions  for  judgment  and  award  of  execution. 

40.  Judgment  on  motion  against  officer  for  not  returning  execution. 
1  Rob.  Prac.  610  to  613. 

On  the  motion  of  J.  G.  against  E.  F.  sheriff  of  the  county 
of  iJ. — This  da}^  came  the  parties  by  their  attorneys,  who  being 
fully  heard,  it  is  considered  by  the  court  that  the  defendant  be 
fined  $  230.  to  the  use  of  the  said  /.  G.  for  not  returning,  ac- 
cording to  law,  an  execution  sued  out  of  this  court  by  the  plain- 
tiff against  Z.  B.  which  it  appears  was  delivered  to  the  defen- 
dant {or,  G.  H.  the  defendant's  deputy)  to  execute ;  and  also 
that  the  plaintiff  recover  against  the  defendant  his  costs  by  him 
&c. mercy  &c. 

41.  Fi.  fa.  upon  judgment  against  officer  for  not  returning  execu- 

tion. 

you  cause  to  be  made  the  sum  of ,  which  J.  R. 

lately  in  &c.  hath  recovered  against  the  said  M.,  it  being  the 
sum  which  the  said  M.  was  fined  to  the  use  of  the  said  R.  for 
not  returning,  according  to  law,  an  execution  sued  out  of  the 
said  court  by  the  said  R.  against  R.  C.  which  was  delivered  to 
the  said  M.  {or,  to  W.  L.  the  said  M.^s  deputy)  to  execute ;  also 

$ ,  which  to  the  said  R.  in  the  same  court  were  adjudged 

for  his  costs  &c. 

42.  Notice  of  motion  against  officer  for  not  returning  forfeited  forth- 

coming  bond.     1  Rob.  Prac.  613. 

To  A.  B.  sheriff  of  the  county  of  H. 
Sir, 

Upon  a  judgment  obtained  in  the  court  of  H.  county 
in  my  name  against  C.  D.  for  &c.  a  writ  o^  fieri  facias  was  issued 
from  the  office  of  the  said  court  on  the day  of ,  re- 
turnable to  the  first  day  of  the  then  next  term,  which 

writ  came  into  the  possession  of  G.  H.  your  deputy,  and  was 
levied  by  him  on  goods  and  chattels  of  the  said  C.  D.  who  gave 
bond,  with  E.  F.  his  surety,  to  have  the  said  goods  and  chattels 
forthcoming  at  the  day  of  sale,  but  afterwards  failed  to  deliver 
up  the  same  according  to  the  condition  of  his  bond ;  and  the 
said  G.  H.  your  deputy  as  aforesaid,  has  failed  to  deliver  the 
said  bond  to  me,  or  any  one  for  me,  although  it  has  been  de- 
manded of  him,  and  has  also  failed  to  return  the  same  to  the 
office  aforesaid,  on  the  return  day  of  the  execution.  Notice  is 
therefore  given  you,  that  on  &c.  I  shall  move  the  said  court  to 
fine  you,  according  to  law,  for  the  said  failure.  Given  under 
my  hand  this day  of . 


Motions  for  judgment  and  aivard  of-  execution.  291 

43.  Notice  of  motion  against  officer  for  not  returning  the  schedule  of 
an  insolvent  debtor.     1  Rob.  Prac.  613. 

To  A.  B.  sheriff  of  the  county  of  C. 
Sir, 

Upon  a  judgment  obtained  in  the  court  of  H.  coun- 
ty in  my  name  against  C.  D.  for  &c.  a  writ  of  capias  ad  satisfa- 
ciendum was  issued  from  the  office  of  the  said  court  on  the 

day  of ,  returnable  to  the  first  day  of  the  then  next  term, 

which  writ  came  into  the  possession  of  G.  H.  your  deputy,  who 
took  the  said  C.  D.  in  execution,  and  the  said  C.  D.  rendered  a 
schedule  of  his  estate,  took  the  oath  prescribed  by  law,  and  was 
discharged  as  an  insolvent  debtor;  but  the  said  G.  H.  your  de- 
puty, though  the  oath  was  administered  in  the  court  of  C.  coun- 
ty, has  failed  to  return  a  certified  copy  of  the  schedule  to  the  of- 
fice of  H.  county  court,  as  the  statute  in  such  case  requires ;  {or^ 
though  the  oath  was  taken  before  a  justice  of  the  peace,  has 
failed  to  return  the  schedule  to  the  office  of  H.  county  court,  as 
the  statute  in  such  case  requires,  neither  has  he  made  a  return 
to  the  said  office,  shewing  that  any  other  execution  had  previ- 
ously come  to  his  hands,  with  which  the  schedule  is  returned, 
and  specifying  the  office  to  which  the  same  is  returned.)  And 
more  than  thirty  days  having  elapsed  since  the  schedule  was 
rendered  and  oath  taken,  notice  is  therefore  given  you,  that  on 
&c.  I  shall  move  the  said  court  to  fine  you,  according  to  law, 
for  the  failure  to  make  such  return  as  the  law  requires  in  such 
case.     Given  under  my  hand  this day  of . 

44.  Notice  of  motion  against  officer  for  not  returning  account  of 
sales  of  insolvent's  effects.     1  Rob.  Prac.  613. 

(As  last,  to  the  words  "  was  discharged  as  an  insolvent  deb- 
tor ;")  and  the  said  G.  H.  your  deputy,  on  the day  of , 

made  sale  of  the  effects,  which  came  to  his  hands,  of  the  said 
C.  D.  but  he  has  failed  to  make  a  return  to  the  office  of  H.  coun- 
ty court,  stating  the  amount  made  by  such  sale,  and  specifying 
the  property  sold,  and  the  price  of  each  article  sold,  as  the  sta- 
tute in  such  case  requires;  and  more  than  sixty  days  have 
elapsed  since  the  said  sale  was  made.  Notice  is  therefore  given 
you,  that  on  &c.  I  shall  move  the  said  court  to  fine  you  &c.  (as 
last.) 

45.  Notice  of  motion  for  not  returning  account  of  sales  of  goods  sold 
under  execution.     1  Rob.  Prac.  613. 

(As  in  No.  42.  to  the  words  "  was  levied  by  bim  on  goods  and 
chattels  of  the  said  C.  2?.")  and  the  said  G.  H.  your  deputy 


292  Motions  for  judgment  and  award  of  execution. 

made  sale,  on  the day  of ,  of  the  said  goods  and 

chattels,  but  he  has  failed  to  return,  in  the  manner  and  time  re- 
quired by  the  statute,  an  account  of  the  sales  made  by  him  in 
virtue  of  the  said  execution.  Notice  is  therefore  given  you,  that 
on  &c.  I  shall  move  the  said  court  to  fine  you  &c.  (as  last.) 

If  the  motion  be  by  the  defendant,  the  commencement  of  the 
notice  will  be  as  follows :  "  Upon  a  judgment  obtained  in  &c. 
in  the  name  of  A.  B.  against  me,  for"  &c. ;  and  afterwards,  in 
lieu  of  the  words  "  was  levied  by  him  on  goods  and  chattels  of 
the  said  C.  i?."  say,  "  was  levied  by  him  on  my  goods  and 
chattels." 

If  the  motion  be  by  a  purchaser  of  the  property  under  the 
execution,  the  commencement  will  be  as  follows :  "  Upon  a 
judgment  obtained  in  &c.  in  the  name  of  A.  B.  against  C,  D. 

for"  &c. ;  and  after  the  words  "  made  sale,  on  the day  of 

,  of  the  said  goods  and  chattels,"  insert,  "  and  I  became 

the  purchaser  of  the  same,  but  the  said  G.  H.  has  failed"  &c. 

46.  Notice  of  motion  by  creditor  against  officer  for  money  received 
under  execution.  1  Rob.  Prac.  613  to  616.  Chapman  v.  Chevis, 
9  Leigh  297. 

To  A.  B.  sheriff  of  the  county  of  H.  and  C.  D.  &c.  (naming 
them)  his  sureties. 
Gentlemen, 

Upon  a  judgment  obtained  in  the  court  of  iiZ.  county 

in  my  name  against  E.  F.  for  &c.  a  writ  of was  issued 

from  the  office  of  the  said  court  on  the day  of ,  re- 
turnable to  the  first  day  of  the  then  next term,  and  di- 
rected to  the  sheriff  of  H.  county,  upon  which  writ  G.  H.  de- 
puty for  the  said  A.  B.  sheriff  as  aforesaid,  made  return  that 
&c.  (state  the  return)  ;*  and  the  money  so  returned  levied  by  the  said 
G.  H.  on  the  said  writ  has  not  been  paid  to  me.  Notice  is  therefore 
given  you,  that  on  &c.  I  shall  move  the  said  court  for  judgment 
against  you,  jointly,  for  the  money  so  returned  levied  on  the 
said  writ,  with  interest  thereon  at  the  rate  of  fifteen  per  centum 
per  annum  from  the  return  day  of  the  execution  until  the  judg- 
ment shall  be  discharged.    Given  under  my  hand  this day 

of . 

*  If  the  execution  was  delivered  to  the  sheriff  of  any  other 
county  than  that  where  the  creditor  resides,  then,  after  stating 
the  return,  proceed  (in  lieu  of  the  words  in  italics)  as  follows: 
"  and  although,  in  consequence  of  my  not  residing  in  the  coun- 
ty of  H.  I  named in  that  county  to  be  my  agent  for  the 

purpose  of  receiving  the  money  on  the  said  execution,  yet  tiie 


Motions  for  judgment  and  award  of  execution.  293 

said  money  has  not  been  paid,  either  to  the  said or  to  me. 

{Or,  as  follows :  and  although  a  demand  of  the  money  returned 
levied  by  the  said  G.  H.  has  been  made  of  the  said  A.  B.  sheriflf 

as  aforesaid,  in  his  county,  by having  a  written  order  from 

me,  yet  the  said  money  has  not  been  paid,  either  to  the  said 
or  to  me.) 

47.  Judgment  for  sheriffs  costs,  where,  after  notice  by  creditor,  mo- 

tion was  not  made. 

On  the  motion  of  C.  D.  by  his  attorney,  it  is  ordered  that 
A.  B.  pay  him  his  costs  occasioned  by  the  notice  given  him  by 
the  said  B.  that  he  would  move  this  court  on  this  day  for  a 
judgment  against  him  as  sheriff  of  H.  county,  for  the  balance  of 
the  said  BJ's  execution  against  R.  J. ;  which  motion  the  said  B, 
hath  failed  to  make. 

48.  Judgment  on  motion  by  creditor  against  officer  for  money  receiv- 

ed under  execution.     1  Rob.  Prac.  613  to  616. 

This  day  came  &c. considered  that  the  plaintiff  re- 
cover against  the  defendants  $  185.  being  the  sum  returned 
levied  by  P.  J.  as  deputy  for  the  defendant  A.  B.  by  virtue  of 
a  writ  o\  fieri  facias  sued  out  of  this  court  by  the  plaintiff  against 
T.  A.  &c.  with  interest  thereon  at  the  rate  of  fifteen  per  centum 

per  annum  from  the day  of till  payment,  and  his 

costs  &c. mercy  &c. 

49.  Judgment  on  motion  by  creditor  against  officer  for  suffering  a 

debtor  to  escape.     1  Rob.  Prac.  613  to  616. 

This  day  came  &c.  Whereupon,  it  appearing  to  the  court, 
by  the  return  upon  the  writ  of  capiat  ad  satisfaciendum  sued  out  of 
this  court  by  the  plaintiff  against  J.  M.  that  the  defendant  hath 
taken  the  body  of  the  said  J.  M.  and  suffered  him  to  escape, 
with  the  consent  of  the  said  defendant,  out  of  his  custody,  it  is 
therefore  considered  by  the  court  that  the  plaintiff  recover  against 
the  defendant  the  money  mentioned  in  the  said  writ,  amounting 
to  $ ,  with  interest  &c.  (as  last.) 

60.  Fi.  fa.  after  judgment  by  creditor  against  officer  for  money  re- 
ceived under  execution. 

you  cause  to  be  made  the  sum  of ,  which  J.  B. 

lately  in  &c.  hath  recovered  against  the  said  M.  being  the  sum 
levied  by  P.  J.  his  deputy,  by  virtue  of  a  writ  oi  feri  facias 


294  Motions  for  judgment  and  award  of  execution, 

sued  out  of  the  said  court  by  the  said  J.  B.  against  T.  A.  with 
interest  thereon  to  be  computed  after  the   rate  of  fifteen  per 

centum  per  annum  from  the day  of till  payment, 

also  $ which  to  the  said  J.  B.  in  the  same  court  were  ad- 
judged for  his  costs  &c. 

51.  Fi.  fa.  after  judgment  by  creditor  against  oficer  for  suffering  a 

debtor  to  escape. 

you  cause  to  be  made  the  sum  of ,  which  J.  R. 


lately  in  &c.  hath  recovered  against  the  said  M.  for  the  money 
mentioned  in  a  writ  of  capias  ad  satisfaciendum  sued  out  of  the 
said  court  by  the  said  J.  R.  against  L.  H.  upon  which  return 
was  made  by  the  said  M.  that  he  had  taken  the  body  of  the  said 
H.  and  suffered  him  to  escape,  with  the  consent  of  the  said  M, 
out  of  his  custody,  with  interest  thereon  &c.  (as  last.) 

52.  Notice  of  motion  against  officer  and  sureties  for  surplus  arising 

from  sale  under  execution.     1  Rob.  Prac.  616. 

To  A.  B.  sheriff  of  the  county  of  H.  and   C.  D.  &c.  (naming 
them)  his  sureties. 
Gentlemen, 

Upon  a  judgment  obtained  in  the  court  of  H.  coun- 
ty in  the  name  of against  me,  for  &c.  a  writ  of 

was  issued  from  the  office  of  the  said  court  on  the day  of 

,  returnable  to  the  first  day  of  the  then  next  term,  and 

directed  to  the  said  sheriff  of  H.  county,  upon  which  writ  G.  H. 
deputy  for  the  said  A.  B.  sheriff  as  aforesaid,,  made  return  that 
&c.  (state  the  return) ;  and  there  has  been  a  failure  to  pay  over 
to  me  the  surplus  money  arising  from  the  sale  under  the  said 

execution,  which  surplus,  after  satisfying  the  said ,  the 

creditor  aforesaid  at  whose  suit  the  said  sale  was  made,  and  all 

costs  and  charges  of  such  sale,  amounts  to  % .     Notice  is 

therefore  given  you,  that  on  &c.  I  shall  move  the  said  court  for 
judgment  against  you,  jointly,  for  the  said  surplus  money,  with 
interest  thereon  at  the  rate  of  fifteen  per  centum  per  annum  from 
the  return  day  of  the  execution  until  the  judgment  shall  be  dis- 
charged.    Given  under  my  hand  this day  of . 

53.  Notice  of  motion  against  officer  for  money  arising  from  the  sale 

of  an  insolvent's  estate.     1  Rob.  Prac.  616. 

(As  in  No.  43.  to  the  words  "  was  discharged  as  an  insolvent 
debtor;")  and  the  said  G.  H.  your  deputy  has  made  a  return  to 
the  office  of  H.  county  court,  of  a  sale  made  by  him,  on  the 


Motions  for  judgment  and  award  of  execution,  295 

day  of ,  of  the  effects,  which  came  to  his  hands,  of 

the  said  C.  D.  stating  the  amount  made  by  such  sale,  and  speci- 
fying the  property  sold,  and  the  price  of  each  article  sold,  by 
which  return  it  appears  that  the  money  arising  from  the  said  sale 
amounts  to  $— = — ;  but  that  money  has  not  been  paid  to  me, 
as  the  statute  in  such  case  requires.  Notice  is  therefore  given 
you,  that  on  &c.  I  shall  move  the  said  court  for  judgment  against 
you  for  the  said  money,  with  interest  thereon  at  the  rate  of  fifteen 
per  centum  per  annum,  from  the  day  on  which  the  same  ought 
to  have  been  paid,  until  the  judgment  shall  be  discharged. 
Given  under  my  hand  this day  of . 

54.  Judgment  on  motion  against  ofjicer  for  money  arising  from  the 

sale  of  an  insolvent's  estate.     1  Rob.  Prac.  616. 

considered  by  the  court  that  the  plaintiff  recover  against 

the  defendant  $  19.  being  the  sum  arising  from  the  sale  made  by 
T.  S.  deputy  for  the  defendant  P.  of  property  contained  in  the 
schedule  delivered  in  by  T.  M.  when  in  execution  at  the  suit  of 
the  plaintiff,  with  interest  thereon  at  the  rate  of  fifteen  per  cen- 
tum per  annum  from  the day  of till  payment,  and 

his  costs  &c. 

55.  Notice  of  motion  against  officer  for  money  or  goods  received  un- 
der summons  against  the  garnishee  of  an  insolvent.  1  Rob.  Prac. 
616. 

To  A.  B.  sheriff  of  the  county  of  H. 
Sir, 

C.  D.  having  been  discharged  as  an  insolvent  debtor, 
under  a  writ  of  capias  ad  satisfaciendum  sued  out  of  the  court  of 
H.  county  at  my  suit,  for  &c.  and  the  schedule  subscribed  and 

delivered  in  by  the  said  C.  D.  mentioning  a  sum  of  S to  be 

due  him  from  E.  F.  {or,  mentioning  the  following  goods  and 
chattels  as  belonging  to  him  and  in  the  possession  of  E.  F.  to 
wit,  &c.)  the  clerk  of  the  said  court,  with  whom  the  said  sche- 
dule remained,  issued  a  summons,  at  my  instance,  on  the 

day  of ,  against  the  said  E.  F.  reciting  the  sum  of  money 

he  was  charged  with  {or,  the  particular  g^ods  and  chattels  said 
to  be  in  his  possession)  and  requiring  him  to  appear  at  the  next 
court,  and  declare  on  oath  whether  the  said  money,  or  any  part 
thereof,  was  really  due  to  the  said  C.  D.  {or,  whether  the  said 
goods  and  chattels  were  really  in  his  possession,  and  were  the 
property  of  the  said  C.  D.)  ;  and  the  said  E.  F.  at  the  time  of 
executing  the  said  summons,  tendered  to  you  the  money  {or,  the 
goods  and  chattels)  mentioned  therein,  and  you  received  the 


296  Motions  for  judgment  and  award  of  execution, 

same,  but  you  have  failed  to  return  the  said  summons  {or,  have 
made  a  false  return  on  the  said  summons — or,  have  failed  to  pay 
the  money  by  you  received.)  Notice  is  therefore  given  you,  that 
on  &c.  I  shall  move  the  said  court  to  render  judgment  against 
you,  according  to  law,  for  your  said  delinquency.  Given  under 
my  hand  this day  of . 

66.  Where  the  court  ascertains  the  value,  in  money,  of  rent  reserved 
in  any  thing  other  than  money,  and  property  distrained  for  such 
rent  is  sold,  notice  of  motion  against  officer  for  the  proceeds.  1 
Rob.  Prac.  616. 

To  A.  B.  sheriff  of  the  county  of  H. 
Sir, 

After  making  distress  of  the  property  of  C.  D.  for 
rent  of  a  tenement  in  the  county  of  H.  leased  by  me  to  him, 
the  rent  whereof  was  reserved  in  wheat,  I  applied  to  the  court 
of  the  said  county  to  ascertain  the  value,  in  money,  of  the  rent 
in  arrear  so  reserved,  and  to  order  the  property  distrained,  or  so 
much  thereof  as  might  be  necessary,  to  be  sold  for  the  satisfac- 
tion of  such  rent.     Whereupon  the  said  court,  on  the day 

of ,  after  due  notice  of  the  application  to  the  tenant,  as- 
certained the  value,  in  money,  of  the  rent  in  arrear  so  reserved, 

to  be  $ ,  and  ordered  a  sale  of  the  propertj'  distrained,  an4 

awarded  costs  to  me,  amounting  to  $ .     In  pursuance  of 

which  order,  E.  F.  your  deputy,  who  had  distrained  the  proper- 
ty, proceeded,  on  the  day  of ,  to  sell  so  much  of 

the  property  distrained  as  aforesaid,  as  was  necessary  to  raise 
the  amount  of  money  and  costs  aforesaid;  .and  the  said  E.  F. 
your  deputy  accordingly  received  the  money  and  costs  afore- 
said, under  the  said  order,  but  there  has  been  a  failure  on  his 
part,  and  on  yours  also,  to  pay  over  the  same  to  me.  Notice  is 
therefore  given  you,  that  on  &c.  1  shall  move  the  said  court  for 
judgment  against  you  for  the  money  and  costs  so  received,  with 
interest  thereon  at  the  rate  of  fifteen  per  centum  per  annum,  from 
the  day  on  which  the  same  ought  to  have  been  paid  to  me,  until 
the  judgment  shall  be  discharged,  and  also  for  the  costs  of  the 
motion.     Given  under  my  hand  this day  of . 


Motions  for  judgment  and  award  of  execution.  297 

57.  Notice  of  motion  by  sheriff  against  deputy,  for  amount  of  judg- 
ment against  sheriff  for  deputy^s  misconduct.  1  Rob.  Prac.  616 
to  619.  M' Daniel  ^c.  v.  Brovm's  ex'crr,  8  Leigh  218. 

To  mr.  C.  D. 

Sir, 

On  the day  of ,  judgment  was  rendered 

by  the  circuit  superior  court  of  law  and  chancery  for  the  coun- 
ty of  H.  in  favour  of  ^.  B.  against  me,  as  sheriff  of  the  county 
of  H.  for  the  sum  of  &c.  (stating  the  amount  of  the  judgment) 
for  and  on  account  of  your  default  and  misconduct  as  my  depu- 
ty in  the  said  office  of  sheriff.  Notice  is  therefore  given  you, 
that  on  &c.  I  shall  move  the  said  court  to  give  judgment  against 
you  for  the  full  amount  of  the  judgment  so  rendered  against  me, 
and  to  award  execution  for  the  same.  Given  under  my  hand 
this day  of . 

58.  Judgment  in  favour  of  sheriff  against  deputy  and  his  sureties, 
for  amount  of  judgment  against  sheriff  for  deputy^  s  default.  M^  Da- 
niel Sfc  V.  Brown's  ex'or,  8  Leigh  218. 

On  the  motion  of  A.  R.  executor  of  J.  B.  late  sheriff  of  this 
county,  against  A.  T.  late  deputy  sheriff  of  the  said  county, 
and  C.  D.  and  E.  F.  his  sureties. — This  day  came  the  parties 
by  their  attorneys,  and  the  evidence  being  heard,  it  appears 
from  the  same,  that  a  judgment  has  been  rendered  in  this  court, 
in  favour  of  C.  P.  T.  against  the  plaintiff  as  executor  of  the  said 
J.  B.  late  sheriff  as  aforesaid,  on  account  of  the  default  of  the 
defendant  A.  T.  as  bis  deputy,  for  the  sum  of  $131.21  cents, 
with  interest  thereon  at  the  rate  of  fifteen  per  centum  per  an- 
num from  the  25lh  day  of  May  1824  till  payment,  and  $4.86 
cents  costs ;  and  it  further  appears  that  the  defendants  C.  D. 
and  E.  F.  are  the  sureties  for  the  said  A.  T.  as  deputy  sheriff 
aforesaid.  Whereupon,  on  the  motion  of  the  plaintiff,  it  is  con- 
sidered by  the  court  that  the  plaintiff  recover  and  have  execu- 
tion against  the  defendants  for  the  full  amount  of  the  judgment 
aforesaid,  that  is  to  say,  for  the  said  sum  of  $  131.21  cents,  with 
interest  thereon  at  the  rate  of  fifteen  per  centum  per  annum  from 
the  said  25th  day  of  May  1824  till  payment,  and  the  said  $  4.86 
cents ;  and  it  is  farther  considered  that  the  plaintiff  recover 
against  the  defendants  his  costs  by  him  in  this  behalf  expended. 
38 


298  Motions  for  j7idgment  and  award  of  execution. 

59.  Notice  of  motion  by  sheriff  against  deputy,  for  money  received 

under  execution.     1  Rob.  Prac.  619,  20. 

To  mr.  C.  D. 

Sir, 

Upon  a  judgment  obtained  in  the  court  of  JET.  county, 
in  the  name  o^  A.  B.  against  E.  F.  for  &c.  a  writ  of was  is- 
sued from  the  office  of  the  said  court  on  the day  of , 

returnable  to  the  first  day  of  the  then  next term,  and  di- 
rected to  the  sheriff  of  H.  county  ;  upon  which  writ  you,  as  de- 
puty for  me  in  the  said  office  of  sheriff,  made  return  that  &c. 
(stale  the  return)  ;  and  the  money  so  returned  levied  by  you  on 
the  said  writ  has  not  been  paid,  either  to  the  said  A.  B.  or  to  me. 
Notice  is  therefore  given  you,  that  on  &c.  I  shall  move  the  said 
court  for  judgment  against  you  for  the  money  so  returned  levied 
on  the  said  writ,  with  interest  thereon  at  the  rate  of  fifteen  per 
centum  per  annum  from  the  return  day  of  the  execution  until 
the  judgment  shall  be  discharged.  Given  under  my  hand  this 
day  of . 

60.  Notice  of  motion  by  sheriff  against  deputy  and  his  sureties,  for 

taxes.     1  Rob.  Prac.  620. 

To  C.  D.,  E.  F.  &c.  (naming  the  deputy  and  his  sureties.) 
Gentlemen, 

On  the day  of ,  I,  A.  B.  sheriff  of  the 

county  of  H.  appointed  the  said  C.  D.  to  be  my  undersherifT,  to 
collect  the  taxes  required  by  law  in  the  said  county ;  and  the  said 
C.  D.  has  neglected  and  refused  to  account  for  and  pay  the  said 
taxes  to  me,  or  to  the  treasurer,  at  the  time  appointed  for  paying 
the  same.  Notice  is  therefore  given  you,  that  on  &c.  I  shall 
move  the  said  court  to  give  judgment  against  you,  for  all  the 
money  wherewith  the  said  C.  D.  is  chargeable  on  account  of 
the  said  taxes,  and  five  per  centum  damages  and  six  per  centum 
interest  thereon  ;  judgment  having  been  obtained  against  me,  as 

high  sheriff,  for  the  same.     Given  under  ray  hand  this day 

of . 

61.  Notice  of  motign  by  sheriff  against  administrators  of  deputy,  for 

taxes  ;  drawn  more  specially  than  the  last. 

To  J.  H.  and  S.  P.  administrators  with  the  will  annexed  of  J. 

B.  P.  deceased,  lately  a  deputy  sheriff  of  the  county  of  H. 

Take  notice,  that  on  the  second  day  of  the  next  court  to  be 

held  for  the  said  county  of  H.  I  shall,  by  my  attorney,  move  the 

said  court  for  a  judgment  and  award  of  execution  against  you, 


Motions  for  judgment  and  award  of  execution.  299 

as  administrators  as  aforesaid,  for  the  sum  of  $  246.12  cents, 
which  sum  your  testator  the  said  J.  B.  P.  deceased,  in  his  life- 
time, after  he  was  appointed  by  me  to  be  my  deputy  sheriff,  to 
collect  the  taxes  required  by  law  in  the  said  county,  and  after  he 
had  qualified  to  his  said  office  of  deputy  sheriff,  to  wit,  after  the 

day  of  March  in  the  year  1826,  and  before  the  first  day  of 

September  in  the  same  year,  received,  by  virtue  of  his  said  office 
of  deputy  sheriff,  on  account  of  the  taxes  required  by  law  in  the 

said  county  ;  that  is  to  say,  the  sum  of  $ was  received  by 

your  said  testator  of  each  and  every  one  of  the  following  per- 
sons, to  wit,  of  D.  S.  &c.  as  and  for  the  tax  imposed  by  law  on 

a  license  to  keep  an  ordinary  ;  the  sum  of  $ was  received 

by  your  said  testator  of  each  and  every  one  of  the  following 
persons,  to  wit,  of  J.  L.  &:c.  as  and  for  the  tax  imposed  by  law 
on  a  license  to  sell  by  retail  goods,  wares  or  merchandise  of 
foreign  or  domestic  growth  or  manufacture  ;  and  the  sum  of  $  — 
was  received  by  your  said  testator  of  a  certain  J.  *S.  as  and  for 
the  tax  imposed  by  law  on  a  license  to  a  hawker  or  pedler  to  sell 
dry  goods  of  foreign  or  domestic  growth  or  manufacture:  and 
which  said  several  sums  so  received  by  the  said  J.  B.  P.  de- 
ceased, in  his  lifetime,  by  virtue  of  his  said  office,  for  the  taxes 
on  the  several  licenses  above  specified,  amounting  in  the  whole 
to  the  said  sum  of  $246.12  cents,  he  the  said  J.  B.  P.  deceased, 
in  his  lifetime,  did  wholly  neglect  and  refuse  to  account  for  and 
pay  to  me,  or  to  the  treasurer  of  the  commonwealth  ;  and  since 
the  death  of  the  said  J.  B.  P.  you,  his  administrators  as  afore- 
said, have  also  neglected  and  refused  to  account  for  and  pay  the 
same  to  me,  or  to  the  said  treasurer,  at  the  time  appointed  for 
paying  the  same,  or  at  any  other  time,  either  before  or  since  the 
period  last  mentioned.  And  I  shall  also  move  the  said  court  for 
a  judgment  and  award  of  execution  against  you,  as  administra- 
tors as  aforesaid,  for  interest  on  the  said  sum  of  $  246.12  cents, 
from  the  1st  day  of  November  1826  (the  time  appointed  for  pay- 
ing the  same)  till  payment,  and  for  the  costs  of  the  said  motion. 

February  15.  1827.  sheriff  of  the  county  of  H. 

62.  Fi.  fa.  upon  judgment  in  favour  of  sheriff  against  deputy^s 
sureties,  for  taxes. 

that  of  the  goods  and  chattels,  in  your  bailiwick,  of  J. 

S.  &c.  sureties  for  P.  S.  deputy  for  W.  J.  late  sheriff  of  H. 
county,  you  cause  to  be  made  $883.11  cents,  which  the  said 
TV.  J.  late  sheriff  of  the  said  county  of  H.  lately  in  &c.  hath 
recovered  against  them  for  the  money  wherewith  the  said  P.  S. 
is  chargeable,  as  deputy  aforesaid,  on  account  of  the  taxes  he 


300  Motions  for  judgment  and  award  of  execution. 

had  to  collect  in  the  said  county  of  H.  for  the  year  1795 ;  also 
$44.15  cents,  being  the  five  per  centum  damages  for  which 
judgment  has  been  heretofore  obtained  against  the  said  TV.  J. 
and  which  the  said  W.  J.  has  therefore  recovered  against  the 
said  J.  S.  &c. ;  also  interest  on  the  said  money  and  damages, 

at  the  rate  of  six  per  centum  per  annum,  from  the day  of 

in  the  year till  payment,  and  likewise  $ , 

which  to  the  said  M'^.  J.  in  our  said  county  court  were  adjudged 
for  his  costs  by  him  in  that  behalf  expended  :  whereof  the  said 
J.  S.  &c.  are  convict  &c. 

63.  Notice  of  motion  by  sheriff  against  deputy  and  his  sureties,  for 

other  moneys.     1  Rob.  Prac.  620. 

To  C.  D.,  E.  F.  Sec.  (naming  the  deputy  and  his  sureties.) 
Gentlemen, 

The  said  C.  D.  who  came  into  the  office  of  deputy 
sheriff  under  me.  A,  B.  the  sheriff  of  the  county  of  H.  is  found 
in  arrears  for  the  following  money  received,  or  which  ought  to 
have  been  received,  by  him  by  virtue  of  his  office,  and  for 
which  I,  as  his  principal,  am  chargeable ;  that  is  to  say,  for  &c. 
(here  specify  the  same) :  and  the  said  C.  D.  has  not  paid  and 
delivered  tlie  said  money  to  the  person  {or,  persons)  entitled 
thereto.  Notice  is  therefore  given  you,  that  on  &c.  I  siiall  move 
the  said  court  to  give  such  judgment  against  you  as  I  am  liable 
to  by  motion  against  me,  on  account  of  the  said  arrears,  mis- 
conduct and  default  of  the  said  C.  D.  Given  under  my  hand 
this day  of . 

64.  Notice  of  motion  by  sureties  of  sheriff  for  execution  against  his 

lands.     1  Rob.  Prac.  620,  21. 

To  A.  B.  sheriff  of  the  county  of  H. 
Sir, 

Judgment  having  been  entered  up  in  the  general 
court,  on  behalf  of  the  commonwealth,  against  you  as  sheriff  as 
aforesaid,  and  us  as  sureties  for  you,  for  a  debt  due  to  the  com- 
monwealth, for  which  your  lands  were  bound  ;  and  we,  as  such 

sureties,  having,  on  the day  of ,  paid  and  discharged 

$ ,  the  amount  of  the  said  judgment,  and  having  after- 
wards, to  wit,  on  the day  of  ,  in  the  same  court, 

obtained  judgment  against  you  for  the  full  amount  paid  by  us 
as  aforesaid,  with  interest  thereon  from  the  time  the  same  was 
so  paid,  we  are  advised  that  your  lands  are  bound  to  us,  in  like 
manner  as  they  were  bound  to  the  commonwealth.  Notice  is 
therefore  given  you,  that  on  &c.  we  shall  move  the  general  court 


Motions  for  judgment  and  award  of  execution.  301 

to  award  a  like  execution  against  the  said  lands,  to  that  which 
would  have  been  issued  on  behalf  of  the  commonwealth.  Given 
under  our  hands  this day  of . 

65.  Notice  of  motion  by  sheriff  for  execution  against  lands  of  deputy 
and  his  sureties.     1  Rob.  Prac.  621. 

To  C.  D.,  E.  F.  Sec.  (naming  the  deputy  and  his  sureties.) 
Gentlemen, 

1  am  advised,  that  for  the  amount  of  the  judgment 
recovered  by  me  against  you  in  the  court  of  H.  county  on  the 

day  of ,  your  lands  are  bound  to  me,  in  like  manner 

as  my  lands  were  bound  to  the  commonwealth  :  I  therefore  give 
you  notice,  that  on  &c.  I  shall  move  the  said  court  to  award  a 
like  execution  against  the  said  lands,  to  that  which  would  have 
been  issued  on  behalf  of  the  commonwealth  against  mine.  Given 
under  my  hand  this day  of . 

66.  Notice  of  motion  by  sureties  of  de-puty  sheriff  for  execution 
against  his  lands.     1  Rob.  Prac.  621. 

To  C.  D, 

Sir, 

We  having,  as  sureties  for  you  as  deputy  sheriff  of 
the  county  of  ^.  paid  a  debt  due  from  you,  in  that  character,  to 
A.  B.  the  high  sheriff  of  the  said  county,  and  a  judgment  having 
been  recovered  by  us  against  you  in  the  court  of  H.  county  on 

the day  of ,  for  the  amount  so  paid,  with  interest  and 

costs  ;  we  are  advised  that  your  lands  are  bound  to  us,  in  like 
manner  as  they  would  have  been  bound  to  the  high  sheriff.  We 
therefore  give  you  notice,  that  on  &c.  we  shall  move  the  said 
court  to  award  a  like  execution  against  your  lands,  to  that  which 
would  have  been  issued  on  behalf  of  the  high  sheriff.  Given 
under  our  hands  this day  of . 

67.   Upon  what  executions  the  clerk  shall  endorse  that  no  security  is 

to  be  taken. 

The  cases  are  specified  in  1  Rob.  Prac.  621,  2.  The  statutes  there 
referred  to  are  1  R.  C.  1819,  p.  530.  §  16.  Id.  p.  447.  §  2.  Id.  p.  532. 
§  20.  Id.  p.  252.  §  24.  25.  26.  Id.  p.  254.  §  32.  and  Sess.  Acts  1822-3, 
p.  32.  §  3. 


302  Attachments. 


CHAPTER  XXVII. 


ATTACHMENTS. 


1.  Bond  taken  where  attachment  is  granted  against  an  absconding 
debtor  for  a  debt  exceeding  ten  dollars,  which  has  become  payable. 
1  Rob.  Prac.  625. 

Know  all  men  &c.  (as  in  p.  152.  No.  3.) 

The  condition  of  the  above  obligation  is  such,  that  whereas 
complaint  has  tbis  day  been  made  to  J.  2\  mayor  of  the  city  of 
R.  that  W.  J.  D.  is  indebted  to  J.  F.  the  above  bound  W.  H. 
and  S.  B.  P.  merchants  and  partners  doing  business  under  the 
firm  of  JP.,  H.  and  P.  in  the  sum  of  $  263.82  cents,  with  interest 
thereon  from  the  third  day  of  December  1833,  and  that  the  said 
W.  J.  D.  is  removing  out  of  the  said  city  of  R.  privately,  or 
absconds  or  conceals  himself,  so  that  the  ordinary  process  of  law 
cannot  be  served  on  him,  which  complaint  has  been  made  on 
behalf  of  the  said  firm  of  F.,  H.  and  P.  by  the  said  W.  H.  one 
of  the  said  firm,  and  he  has  applied  to  the  said  mayor  to  grant 
an  attachment  in  the  name  and  on  behalf  of  the  said  firm,  against 
the  estate  of  their  said  debtor,  returnable  to  the  next  term  of  the 
court  of  hustings  for  the  said  city  :  Now,  therefore,  if  the  said 
F.,  H.  and  P.  shall  satisfy  and  pay  all  costs  which  shall  be 
awarded  to  the  said  JV.  J.  D.  in  case  the  said  J^.,  H.  and  P. 
shall  be  cast  in  their  suit,  and  also  all  damages  which  shall  be 
recovered  against  them,  or  any  of  them,  for  suing  out  the  said 
attachment,  then  the  above  obligation  is  to  be  void,  otherwise  to 
remain  in  full  force  and  virtue. 

Signed,  sealed  and  delivered  >  [seal], 

in  the  presence  of  )  [seal]. 

Note.  In  Jones  Sf  Ford  v.  Anderson  6^c.  7  Leigh  308.  the  attach- 
ment was  against  the  estate  of  Watson,  for  a  debt  due  to  Jones  S^  Ford; 
and  Samuel  Ford,  one  of  the  firm  at  whose  instance  the  attachment  is- 
sued, gave  his  bond  with  sureties.  In  the  condition  of  the  bond  it  was 
set  forth  that  an  attachment  had  been  granted  to  Samuel  Ford,  and  the 
condition  was  that  "  the  said  Samuel  Ford  shall  satisfy  and  pay  all  costs 
which  shall  be  awarded  to  the  said  J.  W.  in  case  the  said  S.  F.  shall  be 
cast  in  the  said  suit,  and  also  all  damages  which  shall  be  recovered 
against  the  said  S.  F.  for  his  suing  out  the  said  attachment."  The  bond 


Attachments.  303 

not  being  such  as  was  necessary  to  authorize  an  attachment  for  Jones  Sf 
Ford,  the  attachment  was,  for  this  reason,  illegal,  and  was  therefore 
quashed. 

2.  Attachment  against  absconding  debtor  for  a  debt  exceeding  ten 
dollars,  which  has  become  payable.    1  Rob.  Prac.  623.  625,  6. 

City  of  R.  to  wit : 

To  the  Serjeant  or  constable  of  the  said  city. 

Whereas  complaint  has  this  day  been  made  to  me, 
J.  T.  mayor  of  the  city  of  R.  that  W.  J.  D.  late  an  inhabitant 
of  the  said  city,  is  indebted  to  J.  F.,  W.  H.  and  S.  B.  P.  all 
inhabitants  of  the  city  of  New  York  in  the  state  of  New  York, 
and  merchants  and  partners  doing  business  under  the  firm  of 
F.,  if.  and  P.  in  the  sum  of  S  263.82  cents,  with  interest  there- 
on from  the  third  day  of  December  1833,  due  by  promissory 
note  dated  October  1st  1833  and  payable  sixty  days  after  date, 
and  that  the  said  W.  J.  D.  is  removing  out  of  the  said  city  of 
R.  privately,  or  absconds  or  conceals  himself,  so  that  the  ordina- 
ry process  of  law  cannot  be  served  on  him,  which  complaint  has 
been  made  on  behalf  of  the  said  firm  of  F.,  H.  and  P.  by  the  said 
W.  H.  one  of  the  said  firm,  and  he  has  applied  to  me,  the  said 
mayor,  to  grant  an  attachment  in  the  name  and  on  behalf  of  the 
said  firm,  against  the  estate  of  their  said  debtor,  returnable  to 
the  next  term  of  the  court  of  hustings  for  the  said  city  of  R.  ;* 
and  such  bond  and  security  being  taken  by  me  as  the  statute  re- 
quires :  These  are  therefore,  in  the  name  of  the  commonwealth, 
to  require  you  to  attach  the  estate  of  the  said  W.  J.  D.  or  so 
much  thereof  as  shall  be  sufficient  to  satisfy  the  said  sura  of 
S  263.82  cents,  together  with  interest  thereon  from  the  said  third 
day  of  December  1833,  and  the  costs.  And  you  are  empow- 
ered to  serve  and  levy  this  attachment  upon  the  slaves,  goods 
and  chattels  of  the  said  W.  J.  D.  wherever  the  same  shall  be 
found,  or  in  the  hands  of  any  person  indebted  to  him  or  having 
any  effects  of  his,  and  to  summon  such  garnishee  or  garnishees 
to  appear  at  the  next  court  of  hustings  to  be  held  for  the  said 
city  o\  R.  there  to  answer,  upon  oath,  what  he  or  she  is  indebted 
to  the  said  W.  J.  D.  and  what  effects  of  the  said  W.  J.  D.  he  or 
she  hath  in  his  or  her  hands,  or  had  at  the  time  of  serving  this 
attachment.  And  you  are  then  and  there  to  make  known  how 
you  have  executed  this  warrant.  Given  under  my  hand  this 
tenth  day  of  December  1833. 

*  Where  the  emergency  makes  it  necessary  to  issue  and  serve 
the  attachment  on  Sunday,  insert  here  these  words  :  "  And 
though  it  is  Sunday,  proof  is  made  before  me  that  the  said  W. 
J.  D.  is  actually  moving  or  absconding  on  this  day." 


804  Attachments. 

3.  Bond  to  the  officer  serving  the  attachment,  for  the  purpose  of  re- 

plevying  the  same.     1  Rob.  Prac.  627. 

Know  all  men  by  these  presents,  that  we  C.  D.  and  E.  F.  are 
held  and  firmly  bound  unto  G.  H.  sheriff  (or,  serjeant — or,  con- 
stable) of  the  county  {or,  corporation)  of ,  in  the  sum  of 

— — ,  to  be  paid  to  the  said  G.  H.  his  executors,  administrators 
or  assigns  ;  for  the  payment  whereof  we  bind  ourselves  jointly 
and  severally,  and  each  of  us  binds  his  heirs,  executors  and  ad- 
ministrators.    Sealed  with  our  seals  and  dated  this day  of 

in  the  year . 

The  condition  of  the  above  obligation  is  such,  that  whereas, 
complaint  having  been  made  by  A.  B.  to  J.  K.  a  justice  of  the 

peace  for  the  county  {or,  corporation)  of ,  that  C.  D.  his 

debtor  is  removing  out  of  the  said  county  {or,  corporation)  pri- 
vately, or  absconds  or  conceals  himself,  so  that  the  ordinary  pro- 
cess of  law  cannot  be  served  on  him,  the  said  justice  has  grant- 
ed an  attachment  against  the  estate  of  the  said  debtor,  or  so 
much  thereof  as  shall  be  sufficient  to  satisfy  the  said  complain- 
ant his  debt,  amounting  to  S ,  with  interest  thereon  from 

the day  of till  paid,  and  the  costs,  which  attach- 
ment bears  date  the day  of ,  is  returnable  to  the 

next  county  {or,  corporation)  court,  and  is  directed  to  the  sheriff 
or  any  constable  of  the  said  county  {or,  to  the  seijeant  or  con- 
stable of  the  said  corporation) ;  and  whereas  L.  M.  deputy  for 
the  said  G.  H.  sheriff  {or,  serjeant — or,  constable)  as  aforesaid, 
has  levied  the  said  attachment  upon  sundry  goods  and  chattels 
of  the  said  C.  D.  and  the  said  C.  D.  desires  to  replevy  the  same  : 
Now  if  the  said  C.  D.  shall  appear  at  the  court  to  which  the 
said  attachment  is  returnable,  and  abide  by  and  perform  the 
order  and  judgment  of  the  said  court  thereupon,  then  the  above 
obligation  is  to  be  void,  otherwise  it  is  to  remain  in  full  force. 

4.  Sheriff  ^s  return  where  attached  effects  are  replevied  by  giving  bond 

and  security.     1  Rob.  Prac.  627. 

By  virtue  of  this  attachment,  I  levied  the  same,  on  the 

day  of ,  upon  the  following  goods  and  chattels,  to  wit, 

&c.  and  on  the  same  day  {or,  on  the day  of )  the 

said  C.  D.  replevied  the  same,  by  giving  bond  with  E.  F.  his 
surety  ;  which  bond  is  herewith  returned. 

5.  Sheriff^s  return  of  levy  where  no  bond  and  security  are  taJcen  by 

him.     1  Rob.  Prac.  625,  6,  7. 

By  virtue  of  this  attachment,  I  levied  the  same,  on  the 

day  of ,  upon  the  following  goods  and  chattels  of  the  with- 


Attachments.  306 

in  named  C.  D.  to  wit,  &c.  I  have  also  summoned  as  garni- 
shees the  following  persons,  at  the  following  times,  to  wit,  E.  F. 
on  the day  of ,  and  G.  H.  on  the day  of . 

6.  Attachment  dismissed  because  it  was  issued  tvithout  a  proper  bond 

being  taTcen.     1  Rob.  Prac.  625/ 

A.  B.  having  made  complaint  to  a  justice  of  the  peace  of  this 
county,  that  C.  D.  his  debtor  was  removing  out  of  the  county 
privately,  or  absconded  or  concealed  himself,  so  that  the  ordi- 
nary process  of  law  could  not  be  served  on  him,  and  the  said 
justice  having  granted  an  attachment  against  the  estate  of  the 
said  C.  D.  returnable  to  this  court,  which  has  been  levied  upon 
sundry  goods  and  chattels,  the  said  A.  B.  this  day  appeared  by 
his  attorney,  and  the  said  C.  D.  was  solemnly  called,  but  came 
not.  Whereupon,  it  appearing  that  the  said  attachment  was  is- 
sued without  such  bond  being  taken  as  the  statute  requires,  the 
court  is  of  opinion  that  the  said  attachment  is  illegal,  and  doth 
order  that  the  same  be  dismissed. 

7.  Garnishee  sworn ;  judgment  against  defendant ;  and  then  judg- 

ment against  gar?iishee.     1  Rob.  Prac.  626  to  629. 

As  last,  to  —  returnable  to  this  court,  and  the  sheriff  (or,  con- 
stable— or,  Serjeant)  having  made  return  that  he  had  summoned 
R.  A.  as  garnishee,  this  day  came  the  plaintiff  by  his  attorney, 
and  the  said  C.  D.  was  solemnly  called,  but  came  not.  Where- 
upon the  said  R.  A.  came  into  court,  and  being  sworn,  upon  his 
oath  declares  that  he  is  indebted  to  the  said  C.  D.  only  the  sum 
of  $  10.  and  that  he  has  not  now,  and  had  not  at  the  time  of 
serving  the  said  attachment,  any  other  effects  of  the  said  C.  D. 
in  his  hands.  And  it  being  proved  that  the  said  C.  D.  is  indebt- 
ed to  the  plaintiff  the  sum  of  $ mentioned  in  the  attach- 
ment, with  interest  thereon  from  the day  of ,  it  is 

therefore  considered  by  the  court  that  the  plaintiff  recover  against 
the  said  C.  D.  the  said  $ ,  with  interest  thereon  to  be  com- 
puted after  the  rate  of  six  per  centum  per  annum  from  the  said 

day  of till  payment,  and  his  costs  by  him  in  this 

behalf  expended.     And  it  is  further  considered  that  the  plaintiff 
recover  against  the  said  R.  A.  the  aforesaid  sum  of  $  10.  towards 
satisfying  this  judgment. 
39 


306  Attachments. 

8.  Plaintiff  alleging  that  garnishee  has  not  discovered  truly,  jury 
impannelledf  and  after  their  verdict,  judgment  against  defendant, 
and  then  against  garnishee.     1  Rob.  Prac.  629. 

As  last,  to — any  other  effects  of  the  said  C.  D.  in  his  hands. 
And  thereupon  the  plaintiff  alleging  that  the  said  R.  A.  hath 
not  discovered  the  true  amount  due  from  him  to  the  defendant, 
or  what  goods  and  chattels  belonging  to  the  defendant  are  in  his 
possession,  a  jury,  to  wit,  N.  O.  &c.  were  impannelled  imme- 
diately, and  the  said  jury  being  sworn  dihgently  to  enquire  what 
is  the  true  amount  due  from  the  said  R.  A.  to  the  defendant, 
and  what  goods  and  chattels  are  in  his  possession  belonging  to 
the  defendant,  upon  their  oath  do  say,  that  there  is  due  from 
the  said  R.  A.  to  the  defendant  the  sum  of  $  13.33  cents,  and 
no  more,  and  that  there  are  no  goods  and  chattels  in  the  said 
R.  A.^s  possession  belonging  to  the  defendant.  And  it  being 
proved  &c.  (as  last,  to)  the  aforesaid  sum  of  $  13.33  cents,  to- 
wards satisfying  this  judgment. 

If  the  jury  find  in  the  garnishee's  favour,  say upon  their 

oath  do  say,  that  there  is  due  from  the  said  R.  A.  to  the  defen- 
dant the  sum  of  $  10.  as  stated  by  him,  and  no  more,  and  that 
there  are  no  goods  and  chattels  in  the  said  R.  A.^s  possession  be- 
longing to  the  defendant.  And  it  being  proved  &c.  (as  in  No. 
7.  to  the  end,  adding)  and  that  the  said  R.  A.  recover  against 
the  plaintiff  his  costs. 

9.  Judgment  agaiiist  a  garnishee  who  owes  more  than  is  sufficient  to 
satisfy  the  demand  against  the  absconding  debtor.  1  Rob.  Prac. 
629. 

As  in  No.  7.  or  8.  to  the  end  of  the  judgment  against  the  abscond- 
ing debtor,  and  then  as  follows :  And  inasmuch  as  the  sum  of 
money  due  from  the  said  R.  A.  to  the  said  C.  D.  is  more  than 
sufficient  to  satisfy  the  debt,  interest  and  costs  recovered  against 
the  said  C.  D.,  it  is  farther  considered  that  the  said  R.  A.  out  of 
the  money  so  due  from  him,  pay  to  the  plaintiff  the  whole  amount 
of  the  said  debt,  interest  and  costs,  so  recovered  against  the  said 
C.  D. 

10.  Judgment  against  absconding  debtor  who  neither  replevies  nor 
makes  defence,  and  order  for  sale  of  attached  effects.  1  Rob.  Prac. 
628,  9. 

As  in  No.  6.  to was  solemnly   called,    but   came  not. 

Whereupon  it  being  proved  that  the  said  C.  D.  is  indebted  &c. 


Attachments.  307 

(as  in  No.  7.  to  the  end  of  the  judgment  against  the  absconding 
debtor.)  And  it  is  ordered  that  the  officer  who  levied  the  said 
attachment,  sell  and  dispose  of  the  goods  and  chattels  attached 
as  aforesaid,  for  and  towards  satisfaction  of  the  plaintiff's  judg- 
ment, in  the  same  manner  as  goods  taken  in  execution  upon  a 
writ  o^  fieri  facias.  And  the  said  officer  is  required  to  return  to 
the  clerk's  office,  within  thirty  days  after  such  sale  is  made  and 
completed,  an  account  of  the  sales,  specifying  therein  the  several 
articles  sold,  the  persons  to  whom  sold,  and  the  prices  thereof. 

11.  Order  where  attached  effects  are  to  he  sold  to  satisfy,  first,  a  prior 
judgment.,  and  then  a  subsequent  one.     1  Rob.  Prac.  628,  9. 

As  in  No.  6.  to returnable  to  this  court ;  and  return  being 

made,  that  before  the  said  attachment  came  to  the  officer's  hands, 
another  had  been  delivered  to  him,  in  favour  of  W.  M.  against 
the  estate  of  the  said  C.  D.  which  he  levied  upon  sundry  goods 
and  chattels,  and  that  he  afterwards  levied  in  this  case  upon  the 
same  goods  and  chattels,  subject  however  to  the  prior  levy  in  fa- 
vour of  the  said  W.  M. ;  this  day  came  the  said  A.  B.  by  his  at- 
torney, and  the  said  C.  D.  was  solemnly  called,  but  came  not. 
Whereupon,  it  being  proved  that  the  said  C.  D.  is  indebted  &c. 
(as  in  No.  7.  to  the  end  of  the  judgment  against  the  absconding 
debtor.)  And  it  is  ordered  that  the  officer  who  levied  the  said 
attachments,  after  selling  and  disposing  of  the  goods  and  chat- 
tels attached  as  aforesaid,  and  satisfying  the  judgment  this  day 
rendered  on  the  said  attachment  in  favour  of  the  said  W.  M., 
pay  and  satisf}''  this  judgment  to  the  plaintiff,  and  restore  the 
overplus,  if  any,  to  the  defendant.  And  the  said  officer  is  re- 
quired &c.  (as  last.) 

12.  Order,  before  attachment  is  decided,  for  the  sale  of  property  lia- 
ble to  perish,  or  to  become  impaired  in  value,  or  which  it  may  be  ex- 
pensive to  Tceep.     Sess.  Acts  ]838,  p.  73.  ch.  94. 

The  attachment  in  this  case  having  been  levied  upon  proper- 
ty liable  to  perish  {or,  to  become  materially  impaired  in  value — 
or,  which  it  may  be  expensive  to  keep),  the  court  doth  order  that 
the  officer  who  levied  the  said  attachment,  sell  the  property  at- 
tached as  aforesaid,  at  such  time  and  place,  on  such  terms,  and 
after  such  public  notice,  as  is  required  by  law  in  the  case  of 
goods  taken  in  execution  upon  a  writ  of  fieri  facias.  And  the 
said  officer  is  required  &c.  (as  in  No.  10.) 


303  Attachments. 

13.  Attachment  replevied  by  putting  in  hail  in  court.     1  Rob.  Prac. 

627. 

As  in  No.  6.  to which  has  been  levied  upon  sundry  goods 

and  chattels,  the  said  C.  D.  this  day  appeared  by  attorney,  for 
the  purpose  of  replevying  the  same,  and  being  ruled  to  put  in 
good  bail,  E.  F.  of  this  county  comes  into  court  and  undertakes 
for  the  said  C.  D.  that  in  case  he  shall  be  cast  in  this  suit,  he 
shall  pay  and  satisfy  the  condemnation  of  the  court,  or  render 
his  body  to  prison  in  execution  for  the  same,  or  that  he  the  said 
E.  F.  will  do  it  for  him.  Whereupon  it  is  ordered  that  the  goods 
and  chattels  attached  as  aforesaid  be  restored  to  him  the  said  C. 
D.  And  the  cause  is  remanded  to  the  rules,  so  that  the  plaintiff 
may  file  his  declaration,  and  the  case  be  regularly  proceeded 
in. 

14.  Defendant  admitted  to  mahe  defence  without  replevying  the  pro-^ 

perty  attached.     1  Rob.  Prac.  628. 

As  last,  to the  said  C.  D.  this  day  appeared  by  attorney, 

and  on  his  motion,  he  is  admitted  to  make  defence  without  giving 
bail ;  but  the  property  attached  is  not  thereby  to  be  replevied. 
Whereupon  the  defendant  offered  a  plea  in  abatement,  and  the 
plaintiff,  by  his  attorney,  insisting  that  the  plea  is  one  which 
ought  not  to  be  received,  the  court,  without  deciding  at  this  time 
whether  the  said  plea  shall  be  admitted  or  rejected,  doth,  by  con- 
sent of  the  parties,  order  that  the  case  be  continued  till  the  next 
term. 

15.  Plea  in  abatement.     1  Rob.  Prac.  628. 

In  the  court  of  hustings  for  the  city  of  R.  April  term  1832. 
R.  C.  M.  ads  C.  M.  Attachment. — And  the  said  R.  C.  M.  in  his 
proper  person  comes  and  defends  the  wrong  and  injury,  when 
&c.  and  prays  judgment  of  the  said  attachment  of  the  said  C. 
M.  because  he  says  that  he  the  said  R.  C.  M.  on  the  day  on 
which  the  said  attachment  was  issued,  or  at  anj'  time  before  or 
since,  was  not  removing  out  of  the  said  corporation  of  R.  pri- 
vately, nor  has  he  at  any  time  absconded  or  concealed  himself, 
so  that  the  ordinary  process  of  law  could  not  be  served  on  him. 
And  this  he  the  said  R.  C.  M.  is  ready  to  verify.  Wherefore  he 
prays  judgment  of  the  attachment  aforesaid,  and  that  the  same 
may  be  quashed  &c. 

For  affidavit,  see  p.  16.  No.  28. 


Attachments.  309 

16.  Plea  by  claimant  of  the  goods  attached.     1  Rob.  Prac.  628. 

In  &c.  A.  B.  V.  C.  D.     Attachment. 

E.  F.  by  his  attorney  comes,  and  as  well  at  the  suit  of  the 
said  A.  B.  as  at  the  suit  of  the  said  C.  D.  defends  the  wrong 
and  injury,  when  &c.  and  saith  that  the  goods  and  chattels  taken 
by  virtue  of  the  said  attachment  were  not,  at  the  time  of  levy- 
ing the  said  attachment  or  at  any  time  since,  the  property  of  the 
said  C.  D.  but  were  at  that  time,  and  are  now,  the  proper  goods 
and  chattels  of  the  said  E.  F.  to  wit,  at  the  said  county  {or, 

corporation)  of  .     And  this  he  the  said  E.  F.  is  ready  to 

verify.  Wherefore  he  prays  judgment  whether  the  said  goods 
and  chattels  ought  to  be  sold  and  disposed  of  to  satisfy  the  debt, 
interest  and  costs  in  the  said  attachment  mentioned. 

17.  Replication  to  plea  of  claimant.     1  Rob.  Prac.  628. 

And  the  said  A.  B.  saith  that  he,  by  reason  of  any  thing  by 
the  said  E.  F.  in  pleading  alleged,  ought  not  to  be  precluded 
from  having  the  goods  and  chattels,  taken  by  virtue  of  the  said 
attachment,  sold  and  disposed  of  to  satisfy  the  debt,  interest  and 
costs  therein  mentioned,  because  he  saith  that  the  said  goods 
and  chattels  so  taken  were  not,  at  the  time  of  levying  the  said 
attachment  or  at  any  time  since,  the  goods  and  chattels  of  the 
said  E.  F.  but  were  at  that  time,  and  ever  since  have  been,  the 
proper  goods  and  chattels  of  the  said  C.  D.  And  this  the  said 
A.  B.  prays  may  be  enquired  of  by  the  country ;  and  the  said 
E.  F.  likewise. 

18.  Entnj  of  claimant's  plea,  and  replication  thereto  ;  verdict  for 
claimant ;  and  judgment  thereupon.     1  Rob.  Prac.  628. 

As  in  No.  6.  to — which  has  been  levied  upon  sundry  goods 
and  chattels,  this  da}'  came  the  plaintiff  and  E.  F.  by  their  at- 
torneys, and  the  said  E.  F.  filed  a  plea  claiming  the  goods  and 
chattels  taken  by  virtue  of  the  said  attachment,  and  the  plain- 
tiff filed  his  replication  thereto,  praying  that  the  matter  may  be 
enquired  of  by  the  country ;  and  the  said  E.  F.  prays  the  like. 
"Whereupon  the  court  doth  direct  that  a  jury  be  impannelled  to 
enquire  into  the  right  of  property  ;  and  a  jury,  to  wit,  N.  O. 
Sec.  being  elected,  tried  and  sworn  the  truth  to  speak  upon  the 
issue  joined,  upon  their  oath  do  say  that  the  said  goods  and 
chattels  so  taken  were  not,  at  the  time  of  levying  the  said  at- 
tachment or  at  any  time  since,  the  property  of  the  said  C.  D. 
but  were  at  that  time,  and  are  now,  the  proper  goods  and  chat- 
tels of  the  said  E.  F.  Therefore  it  is  ordered  that  the  said  goods 


310  Attachments. 

and  chattels  so  taken  be  delivered  up  to  the  said  E.  F.  and  it 
is  considered  that  he  recover  against  the  plaintiff  his  costs  by 
him  in  this  behalf  expended.  And  there  being  nothing  now 
upon  which  the  said  attachment  can  operate  as  against  the  de- 
fendant C.  D.  it  is  ordered  that  the  same,  as  to  him,  be  dis- 
missed. 

19.  Verdict,  on  claimant's  plea,  in  favour  of  the  attaching  creditor, 

and  judgment  thereupon.     1  Rob.  Prac.  628. 

oath  do  say  that  the  said  goods  and  chattels  so  taken 

were  not,  at  the  time  of  levying  the  said  attachment  or  at  any 
time  since,  the  goods  and  chattels  of  the  said  E.  F.  but  were  at 
that  time,  and  ever  since  have  been,  the  proper  goods  and  chat- 
tels of  the  said  C.  D.  Therefore  it  is  considered  that  the  plain- 
tiff recover  against  the  said  E.  F.  his  costs  by  him  expended  in 
making  up  the  said  issue,  and  about  the  trial  thereof. 

20.  Affidavit  to  obtain  attachment,  where  debt  is  under  $  20.  and  deb- 
tor removes  his  effects.  1  Rob.  Prac.  629.  1  R.  C.  1819,  p.  477. 
<^  10. 

H.  county,  to  wit : 

A.  B.  maketh  oath  and  saith  that  there  is  justly  due  to  him 
from   C.  D.  who  resides  in  the  said  county,  by  a  promissory 

note  dated  the day  of and  payable  the day  of 

,  the  sum  of  $  19.  with  interest  from  the  day  last  men- 
tioned, and  that  he  hath  grounds  to  suspect,  and  verily  believes, 
that  the  said  C.  D.  intends  to  remove  his  effects. 

A.  B. 

Sworn  to  by  the  said  A.  B.  this day  of ,  before 

me,  a  justice  of  the  peace  for  the  county  of  H.  E.  F. 

21.  Attachment  where  debt  is  under  %  20.  and  debtor  removes  his 
effects.    1  Rob.  Prac.  629.     1  R.  C.  1819,  p.  477.  §  10. 

To  all  sheriffs,  Serjeants  and  constables  within  the  common- 
wealth of  Virginia. 

Whereas  A.  B.  has  this  day  come  before  me,  a  justice  of  the 
peace  for  the  county  of  H.  and  made  oath  that  there  is  justly 
due  to  him  from  C.  D.  who  resides  in  the  said  county,  by  a  pro- 
missory note  dated  the  day  of  and  payable  the 

day  of  ,  the  sum  of  $  19.  with  interest  from  the 

day  last  mentioned,  and  that  he  hath  grounds  to  suspect,  and 
verily  believes,  that  the  said  C.  D.  ifrtends  to  remove  his  effects  : 
These  are  therefore,  in  the  name  of  the  commonwealth,  to  re- 


Attachments.  311 

quire  you  lo  attach  the  estate  of  the  said  C.  D.  or  so  much  there- 
of as  shall  be  sufficient  to  satisfy  the  said  sum  of  $  19.  with  in- 
terest thereon  from  the  said  day  of ,  and  the  costs. 

And  I  do  hereby  make  known  to  you  and  every  of  you,  that,  by 
virtue  hereof,  it  is  lawful  as  well  for  the  sheriff  or  any  constable 
of  this  county,  as  for  the  sheriff,  serjeant,  or  any  constable  of 
any  other  county  or  corporation,  to  pursue  and  seize  such  effects. 
And  the  officer  executing  this  warrant  is  to  make  return  to  the 
next  court  of  the  said  county  of  H.  how  he  has  executed  the 
same.     Given  under  my  hand  this day  of . 

22.  Affidavit  to  obtain  attachment,  where  debtor  removes  before  debt  is 
payable.     1  Rob.  Prac.  630.     1  R.  C.  1819,  p.  478.  '^  14. 

H.  county,  to  wit : 

A.  B.  maketh  oath  and  saith,  that  he  is  the  creditor  of  C.  D. 
who  resides  in  the  said  county  (or,  who  has  removed  from  the 
said  county  of  H.  where  he  last  resided — or,  where  his  effects 

may  be  found)  and  the  true  amount  of  the  said  debt  is  $ , 

and  it  will  be  payable  on  the day  of ,  being  evi- 
denced by  a  promissory  note  payable  at  that  time ;  and  that  he 
hath  good  cause  to  suspect,  and  verily  believes,  that  the  said  C. 
D.  will  remove  himself,  with  his  effects,  out  of  the  common- 
wealth before  the  said  debt  will  become  payable  {or,  that  the 
said  C.  D.  hath  actually  removed  himself  out  of  the  common- 
wealth, before  the  said  debt  has  become  payable);  and  also  that 
he  had  no  knowledge,  when  the  said  debt  was  contracted,  of 
the  intention  of  the  said  C.  D.  so  to  remove. 

A.B. 

Sworn  to  by  the  said  A.  B.  this day  of ,  before 

me,  a  justice  of  the  peace  for  the  county  of  H. 

E.F. 

23.  Bond  upon  obtaining  attachment  for  claim  of  %  10.  or  upwards^ 
where  debtor  removes  before  debt  is  payable.  1  Rob.  Prac.  630. 
1  R.  C.  1819,  p.  478.  ^  14. 

Know  all  men  &c.  (as  in  p.  152.  No.  3.) 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  above  named  A.  B.  has  this  day  gone  before  E.  F.  a  justice 
of  the  peace  of  the  county  of  H.  and  made  oath  that  &c.  (re- 
citing the  oath  as  in  No.  22.)  and  the  said  A.  B.  has  thereupon 
applied  to  the  said  justice  to  issue  an  attachment  against  the 
goods  and  chattels  of  the  said  C.  D.  returnable  to  the  next  court 
to  be  holden  for  the  said  county  of  H. — Now  therefore,  if  the 
said  A.  B.  shall  &c.  (as  in  No.  1.) 


312  Attachments. 

24:.  Attachment  for  claim  of  $  10.  or  upwards,  where  debtor  removes 
before  debt  is  payable.     1  Rob.  Prac.  630.     1  R.  C.  1819,  p. 

478.  §  14. 

H.  county,  to   wit:  To  the  sheriff  or  constable  of  the   said 
county. 

Whereas  A.  B.  has  this  day  come  before  me,  a  justice  of  the 
peace  for  the  said  county  of  H.  and  made  oath  that  &c.  (as  in 
No.  22.) ;  and  bond  and  security  being  taken  by  me  from  the 
said  A.  B.  as  the  statute  requires :  These  are  therefore,  in  the 
name  of  the  commonwealth,  to  require  you  to  attach  the  goods 
and  chattels  of  the  said  C.  D.  or  so  much  thereof  as  shall  be 

sufficient  to  satisfy  the  said  sum  of  $ ,  and  the  costs  ;  and 

this  attachment  may  be  served  by  you  on  the  goods  and  chattels 
of  the  said  C.  D.  or  on  any  garnishee  or  garnishees ;  and  you 
are  required  to  make  return  to  the  next  court  to  be  holden  for 
the  said  county  of  H.  how  you  execute  the  same.  Given  under 
my  hand  this  day  of . 

25.  Another,  where  tfie  creditor  is  a  mercantile  firm.    1  Rob.  Prac. 

630. 

City  of  R.  to  wit : 

To  the  Serjeant  or  constable  of  the  said  city. 
Whereas  W.  H.  an  inhabitant  out  of  this  commonwealth,  to 
wit,  of  the  city  of  New  York  in  the  state  of  New  York,  has  this 
day  made  oath  before  me,  J.  T.  mayor  of  the  city  of  R.  in  the 
state  of  Virginia,  that  W.  J.  D.  late  an  inhabitant  of  the  said 
city  of  R.  (in  which  city  he  last  resided)  is  indebted  to  /.  F.  the 
above  named  W.  H.  and  S.  B.  P.  inhabitants  of  the  said  city 
o^  New  York  in  the  state  of  New  York,  and  merchants  and  part- 
ners doing  business  under  the  firm  of  F.,  H.  and  P.  in  the  sum 
of  $534.25  cents,  part  whereof  will  be  payable  on  the  16th  day 
of  January  1834,  and  the  residue  on  the  18th  day  of  February 
1834,  that  is  to  say,  $264.  by  virtue  of  a  note  dated  on  the  15th 
day  of  October  1833,  payable  90  days  after  date,  and  $270.25 
cents  for  merchandise  sold  on  the  15th  of  October  1833,  paya- 
ble at  four  months ;  and  the  said  W.  H.  further  made  oath  that 
the  said  W.  J.  D.  hath  removed  himself  out  of  this  common- 
wealth, leaving  effects  in  the  said  city  of  i2.  and  that  he  the  said 
W.  H.  had  no  knowledge,  and  he  verily  believes  the  said  J.  F. 
and  S.  B.  P.  had  no  knowledge,  when  the  said  debts  were  con- 
tracted, that  the  said  W.  J.  D.  had  any  intention  so  to  remove  : 
These  are  therefore  to  require  you  to  attach  the  goods  and  chat- 
tels of  the  said  W.  J.  D.  or  so  much  thereof  as  will  be  sufficient 
to  satisfy  the  said  debts  and  the  costs ;  and  such  estate,  so  at- 


Attachments.  313 

tached,  in  your  hands  to  secure,  or  so  to  provide  that  the  same 
may  be  liable  to  further  proceedings  thereon,  to  be  had  at  the 
next  term  of  the  court  of  hustings  to  be  held  for  the  said  city  of 
R. ;  when  and  where  you  are  to  make  return  how  you  have  ex- 
ecuted this  warrant. 

Given  under  my  hand  this  10th  day  of  December  1833. 

26.  Bond  given  by  the  debtor  for  the  -payment  of  the  debt  when  it 

shall  become  due.     1  R.  C.  1819,  p.  479. 

Know  all  men  &c.  (as  in  p.  152.  No  3.) 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  above  named  A.  B.  has  gone  before  E.  F.  a  justice  of  the 
peace  for  the  county  of  H.  and  made  oath  that  &c.  (as  in  No. 
22.) ;  and  thereupon  the  said  justice,  taking  bond  and  security 
from  the  said  A.  B.  as  the  statute  requires,  has  issued  an  attach- 
ment against  the  goods  and  chattels  of  the  said  C.  D.  returna- 
ble to  the  next  court  to  be  holden  for  the  said  county  of  H.  which 
attachment  has  been  served  on  sundry  goods  and  chattels  of  the 
said  C.  D. — Now  therefore,  if  payment  be  made  of  the  said  debt 
when  it  shall  become  due,  then  the  above  obligation  is  to  be  void, 
otherwise  it  is  to  remain  in  full  force. 

27.  Debtor  not  giving  bond  for  "payment  of  debt  when  it  shall  be- 
come due,  judgment  against  him,  and  order  for  sale  of  attached 
effects.     1  R.  C.  1819,  p.  479. 

A.  B.  having  gone  before  a  justice  of  the  peace  of  this  coun- 
ty, and  made  oath  that  &c.  (as  in  the  attachment),  and  there- 
upon the  said  justice,  taking  bond  and  security  from  the  said 
A.  B.  as  the  statute  requires,  having  issued  an  attachment 
against  the  goods  and  chattels  of  the  said  C.  D.  returnable  to 
this  court,  which  has  been  served  on  sundry  goods  and  chattels 
of  the  said  C.  D. ;  the  said  A.  B.  this  day  appeared  by  his  at- 
torney, and  the  said  C.  D.  was  solemnly  called,  but  came  not. 
Whereupon,  due  proof  being  adduced  of  the  justice  of  the  said 
debt,  and  of  the  intention  of  the  said  C.  D.  to  remove  {or,  of  the 
said  C.  D.^s  having  actually  removed)  out  of  this  commonwealth, 
it  is  considered  by  the  court  that  the  plaintiff  recover  against 
the  said  C.  D.  his  debt  aforesaid,  when  the  same  shall  be  pay- 
able, and  his  costs  by  him  in  this  behalf  expended.  And  it  is 
ordered  that  the  officer  who  levied  the  said  attachment,  sell  the 
goods  and  chattels  attached  as  aforesaid,  or  so  much  thereof  as 
shall  be  necessary,  upon  a  credit  until  the  time  the  plaintiff's 
claim  shall  be  payable,  taking  a  bond  or  bonds  with  good  secu- 
rity from  the  purchaser  or  purchasers,  and  that  he  assign  the 
40 


314  ,  Attachments. 

same  to  the  plaintiff,  to  the  amount  of  his  debt  and  costs ;  and 
if  it  so  happen  that  more  of  the  goods  attached  shall  be  sold 
than  shall  be  necessary  to  satisfy  the  said  debt  and  costs,  then 
the  said  officer  is  to  take  a  bond  with  good  security  for  the  sur- 
plus, and  assign  the  same  to  the  defendant.  And  the  said  oflS- 
cer  is  required  &c.  (as  in  No.  10.) 

Or,  more  briefly  thus : 
And  it  is  ordered  that  the  officer  who  levied  the  said  attach- 
ment, sell  the  goods  and  chattels  attached  as  aforesaid,  or  so 
much  thereof  as  shall  be  necessary,  upon  a  credit  until  the  time 
the  plaintiff's  claim  shall  be  payable,  taking  a  bond  or  bonds 
with  good  security  from  the  purchaser  or  purchasers,  and  dis- 
posing of  the  same  as  the  law  directs.  And  the  said  officer  is 
required  &c.  (as  in  No.  10.) 

28.  Judgment  against  debtor  for  amount  to  become  due,  and  then 
judgment  against  garnishee.     1  R.  C.  1819,  p.  479. 

As  last,  to which  has  been  served  on  E.  F,  as  garnishee ; 

the  said  A.  B.  this  day  appeared  by  attorney,  and  the  said  C. 

D.  was  solemnly  called,  but  came  not.     Whereupon  the  said 

E.  F.  came  into  court,  and  being  sworn,  upon  his  oath  declared 

that  he  is  indebted  to  the  said  C.  D.  only  the  sum  of  $ 

{or,  that  he  will  be  indebted  to  the  said  C.  D.  the  sum  of  $ 


on  the day  of next)  and  that  he  has  not  now,  and 

had  not  at  the  time  of  serving  the  said  attachment,  any  other 
effects  of  the  said  C.  D.  in  his  hands.  And  thereupon,  due  proof 
being  adduced  of  the  justice  of  the  debt  in  the  attachment 
mentioned,  and  of  &c.  (as  in  last  form,  to  end  of  judgment 
against  absconding  debtor).  And  it  is  further  considered  that 
the  plaintiff  recover  against  the  said  E.  F.  the  aforesaid  sum  of 

$ ,   towards    satisfying   this  judgment.     But   execution 

against  the  said  £.  F.  is  stayed  until  the day  of next. 

29.  Affidavit  to  obtain  attachment  where  tenant  will  remove  his  effects 
before  rent  will  be  'payable.  1  Rob.  Prac.  631.  Johnson  v.  Gar- 
land, 9  Leigh  149. 

H.  county,  to  wit :  A.  B.  maketh  oath  and  saith,  that  a  cer- 
tain tenement  in  the  said  county  has  been  leased  by  him  to  C. 
D.  for  one  year,  from  the  first  of  July  1819  to  the  first  of  July 
1820,  and  by  the  agreement  between  him  and  the  said  C.  D.  he 
the  said  C.  D.  was  to  pay  for  the  said  tenement,  for  the  said 
year,  $  950.  in  quarteryearly  sums,  to  wit,  $237.50  cents  on  the 
1st  of  October  1819,  and  the  like  sum  of  $237.50  cents  on  each 
first  day  of  the  succeeding  January,  April  and  July ;  and  by 


Attachments.  ^§; 

virtue  of  the  said  agreement,  the  sum  of  S  237.50  cents  will  be 
due  on  the  first  of  October  next;  and  that  he  has  just  cause  to 
suspect,  and  verily  believes,  that  the  said  C.  D.  will  remove  his 
effects  from  the  leased  tenement  before  the  said  first  day  of  Oc- 
tober next.  A.  B. 

Sworn  to  by  the  said  A.  B.  this day  of ,  before 

me,  a  justice  of  the  peace  for  the  county  of  H. 

30.  Affidavit  where  the  tenant  has  actually  removed  his  effects  before 
therent  has  become  due.  1  R.  C.  1819,  p.  449.  "^  10.  Sess.  Acts 
1822-3,  p.  29.  ch.  29.  §  1. 

As  last,  to will  be  due  on  the  first  of  October  next ;  and 

that  the  said  C.  D.  has  actually  removed  his  effects  from  the  said 
leased  tenement,  before  the  sum  of  S  237.50  cents  last  mentioned 
hath  become  due,  so  that  there  is  not  left  on  the  said  tenement, 
property  liable  to  distress,  sufficient  to  secure  the  payment  of 
the  said  sum  of  $237.50  cents. 

31.  Attachment  where  tenant  will  remove  or  has  removed  his  effects 
be/ore  rent  becomes  'payable.  1  Rob.  Prac.  631.  Johnson  v. 
Garland,  9  Leigh  149. 

H.  county  to  wit :  To  the  sheriff  or  any  constable  of  the  said 
county. 

Whereas  A.  B.  has  this  day  come  before  me,  a  justice  of  the 
peace  for  the  said  county,  and  made  oath  that  &c.  (as  in  No.  29 
or  30.) :  These  are  therefore,  in  the  name  of  the  commonwealth, 
to  require  you  to  attach  the  goods  and  chattels  of  the  said  C.  D. 
or  so  much  thereof  as  will  be  sufficient  to  satisfy  the  said  sum 
of  S  237.50  cents,  to  become  due  on  the  first  of  October  next, 
and  the  costs ;  and  you  are  to  make  return  to  the  next  court  to 
be  holden  for  the  said  county  of  H.  how  you  execute  this  war- 
rant.    Given  under  my  hand  this day  of . 

32.  Order  quashing  attachment  for  rent.     1  Rob.  Prac.  631,  2. 

A.  B.  having  gone  before  a  justice  of  the  peace  of  this  coun- 
ty, and  made  oath  that  &c.  (as  in  the  attachment),  and  the  said 
justice  having  thereupon  issued  an  attachment  against  the  goods 
and  chattels  of  the  said  C.  D.  returnable  to  this  court,  which  has 
been  levied  on  sundry  goods  and  chattels ;  this  day  came  the 
parties  by  their  attorneys,  and  the  attachment  aforesaid  being 
seen  and  inspected,  and  the  parties  fully  heard,  it  seems  to. the 
court  that,  on  the  face  of  the  said  attachment,  it  appears  that  the 


316  Attachments. 

same  was  illegally  issued ;  and  it  is  therefore  ordered  that  the 
said  attachment  be  quashed,  and  that  the  plaintiff  pay  to  the 
defendant  his  costs. 

33.  Recognizance  for  the  payment  of  rent  at  the  time  it  will  become 
due.     1  Rob.  Prac.  632.     Johnson  v.  Garland^  9  Leigh  149. 

H.  county,  to  wit :  Be  it  remembered  that  on  the day  of 

in  the  year ,  C.  I),  and  E.  F.  of  the  said  county 


personally  appeared  before  me, ,  a  justice  of  the  peace 

for  the  said  county,  and  acknowledged  themselves  to  be  jointly 
and  severally  indebted  to  A.  B.  his  executors,  administrators  or 

assigns,  in  the  sum  of  S ,  to  be  made  of  them  jointly  or 

severally,  and  to  be  levied  of  their  joint  and  several  goods  and 
chattels,  lands  and  tenements,  if  the  said  C.  D.  shall  make  de- 
fault in  the  condition  hereunder  written. 

The  condition  of  the  above  written  recognizance  is  such,  that 
whereas  A.  B.  has  gone  before  a  justice  of  the  peace  of  the 
county  of  H.  and  made  oath  that  &c.  (as  in  the  attachment),  and 
the  said  justice  has  thereupon  issued  an  attachment  against  the 
goods  and  chattels  of  the  said  C.  D.  returnable  to  the  next  court 
to  be  holden  for  the  said  county  of  H. — Now  if  the  said  C.  D. 
his  heirs,  executors  or  administrators,  shall  pay  the  rent  for 
which  the  said  attachment  has  issued,  at  the  time  the  said  rent 
shall  become  due,  then  the  above  recognizance  is  to  be  void, 
otherwise  it  is  to  remain  in  full  force. 

34.  Attachment  having  issued  irregularly,  order  quashing  same  and 
the  recognizance  taken  under  it.  1  Rob.  Prac.  632.  Johnson  v. 
Garland,  9  Leigh  149. 

A.  B.  having  gone  before  a  justice  of  the  peace  of  this  coun- 
ty, and  made  oath  that  &c.  (as  in  the  attachment),  and  the  said 
justice  having  thereupon  issued  an  attachment  against  the  goods 
and  chattels  of  the  said  C.  D.  returnable  to  this  court,  and  re- 
turn being  made  that  the  said  C.  D.  entered  into  a  recognizance, 
with  E.  F.  his  surety,  for  the  payment  of  the  said  rent  at  the 
time  it  shall  become  due  ;  this  day  came  as  well  the  said  A.  B. 
as  the  said  C.  D.  by  their  attorneys,  and  the  said  C.  D.  insist- 
ing that  the  said  attachment  issued  irregularly,  moved  the  court 
to  quash  the  said  attachment,  and  the  recognizance  taken  under 
the  same.  Whereupon,  the  parties  being  fully  heard,  the  court 
doth  order  that  the  said  attachment  and  recognizance  be  quashed 
accordingly,  and  that  the  said  A.  B.  pay  to  the  said  C.  D.  his 
costs  by  him-  in  this  behalf  expended. 


Attachments.  317 

85.   Tenant  not  entering  into  recognizance  for  the  payment  of  the 
rent,  goods  attached  ordered  to  be  sold.     1  Rob.  Prac.  632. 

A.  B.  having  gone  before  a  justice  of  the  peace  of  this  coun- 
ty, and  made  oath  that  &c.  (as  in  the  attachment),  and  the  said 
justice  having  thereupon  issued  an  attachment  against  the  goods 
and  chattels  of  the  said  C.  D.  returnable  to  this  court,  which  has 
been  levied  upon  sundry  goods  and  chattels ;  this  day  came  the 
said  A.  B.,  and  the  said  C.  D.  was  solemnly  called,  but  came 
not.  Whereupon  the  court  doth  order  the  oflBcer  who  levied  the 
said  attachment  to  sell  the  goods  attached,  for  money  to  be  paid 
at  the  time  the  rent  for  which  the  said  attachment  issued  shall 
become  due,  the  purchasers  giving  good  security  for  such  pay- 
ment :  and  the  said  officer  is  to  assign  the  bonds  taken  for  the 
same  and  the  costs,  to  the  said  A.  B. ;  and  the  overplus  of  such 
sale,  if  any  besides  the  charges  of  attachment  and  sale,  he  is  to 
return  to  the  said  C.  D. 

36.  Right  to  sue  out  the  attachment  contested,  and  judgment  entered 

for  the  tenant.     1  Rob.  Prac.  633. 

As  last,  to which  has  been  levied  upon  sundry  goods  and 

chattels  ;  this  day  came  as  well  the  said  A.  B.  as  the  said  C.  D. 
by  their  attorneys,  and  the  said  C.  D.  contested  the  right  of  the 
said  A.  B.  to  sue  out  the  said  attachment.  Whereupon,  it  ap- 
pearing to  the  court  that  the  said  A.  B.  had  not  just  cause  to 
suspect  that  the  said  C.  D.  would  remove  his  effects  from  the 
leased  tenement  before  the  time  of  payment  of  the  rent,  it  is 
considered  by  the  court  that  the  attached  effects  be  restored  to 
the  said  C.  D.  and  that  be  recover  against  the  said  A.  B.  his 
costs  by  him  in  this  behalf  expended. 

37.  Where  the  rent  is  reserved  in  any  other  thing  than  money,  valve 
ascertained  in  money.  1  R.  C.  1819,  p.  450.  ■§  13.  Sess.  Acts 
1826-7,  p.  25.  ch.  27.  "^  1. 

As  in  No.  35.  to  was  solemnly  called,  but  came  not. 

Whereupon  the  court  doth  ascertain  the  value,  in  money,  of  the 

rent  for  which  the  said  attachment  issued,  to  be  S ,  and 

doth  order  the  officer  who  served  the  said  attachment  to  sell  &c. 
(as  in  No.  35.) 


318  Attachments. 

38.  Affidavit  to  obtain  attachment  against  a  vessel,  to  meet  master's 
liability  in  a  suit  against  him  for  carrying  off  a  slave.  1  R.  C. 
1819,  p.  428.  <^  30.  31.    Sess.  Acts  1826-7,  p.  23.  ch.  26.  <^  1. 

H.  county,  to  wit : 

A.  B.  maketh  oath  and  saith,  that  C.  D.  master  of  a  vessel 

called  the ,  had  lately  on  board  his  said  vessel,  in  the 

said  county,  a  slave  named ,  owned  by  the  said  A.  B.,  and 

sailed  beyond  the  limits  of  the  said  county  with  the  said  slave 
on  board  ;  and  that  he  the  said  A.  B.  under  the  provisions  of 
the  act  entitled  "an  act  reducing  into  one  the  several  acts  con- 
cerning slaves,  free  negroes  and  mulattoes,"  passed  the  second 
day  of  March  eighteen  hundred  and  nineteen,  has  just  cause  of 
action  against  the  said  C.  D.  for  carrying  off  and  removing  the 
said  slave,  in  violation  of  the  thirtieth  section  thereof,  and  that 
he  hath  instituted  a  suit  therefor  in  the  court  of  the  said  county 
of  H,y  and  that  he  verily  believes  that  he  will  be  unable  to  ob- 
tain satisfaction  of  the  judgment  to  be  recovered  in  said  suit, 
without  an  attachment  against  the  said  vessel.  A.  B. 

Sworn  to  by  the  said  A.  B.  this day  of ,  before 

me,  a  justice  of  the  peace  for  the  county  of  H.  E.  F. 

39.  Bond  ffiven  when  attachment  issues  against  a  vessel,  to  meet  mas- 
ter^s  liability  in  a  suit  against  him  for  carrying  off"  a  slave.  1  R. 
C.  1819,  p.  428.  §  30.  31.  Sess.  Acts  1826-7,  p.  23.  ch.  26.  <^  1. 

Know  all  men  &c.  (as  in  p.  152.  No.  3.) 

The  condition  of  the  above  obligation  is  such,  that  whereas 
A.  B.  made  affidavit  before  a  justice  of  the  peace  of  the  coun- 
ty of  H.  on  this  day,  that  C.  D.  master  &c.  (reciting  the  affida- 
vit as  in  No.  38.)  Now  if  the  said  A.  B.  his  heirs,  executors  or 
administrators,  shall  indemnify  the  said  C.  D.  and  the  owner  of 
the  said  vessel,  against  any  and  all  loss  or  injury  which  they  or 
either  of  them  may  sustain  by  reason  of  such  attachment,  in 
case  the  defendant  shall  prevail  in  the  said  suit,  then  the  above 
obligation  is  to  be  void,  otherwise  it  is  to  remain  in  full  force. 

40.  Attachment  against  a  vessel,  to  meet  master's  liability  in  a  suit 
against  him  for  carrying  off  a  slave.  1  R.  C.  1819,  p.  428.  <^ 
30.  31.  Sess.  Acts  1826-7,  p.  23.  24.  ch.  26.  <^  1.  3. 

To  the  sheriffs,  Serjeants,  and  constables  of  the  commonwealth 

of  Virginia. 
H.  county,  to  wit : 

Whereas  A.  B.  made  affidavit  before  me,  E.  F.  a  justice  of 
the  peace  for  the  county  of  H.,  on  this  day,  that  C.  D.  master 


Attachments.  319 

&c.  (reciting  the  aflSdavit  as  in  No.  38.);  and  bond  and  security 
having  been  given  as  the  statute  requires  :  These  are  therefore, 
in  the  nanae  of  the  commonwealth,  to  require  you,  in  your  re- 
spective counties  and  corporations,  to  attach  the  said  vessel, 
with  her  tackle,  apparel,  bolts  and  furniture,  and  to  hold  the 
same  liable  to  such  proceedings  as  may  be  had  in  said  suit. 
And  I  do  hereby  make  known  to  every  of  you,  that  it  is  lawfdl 
for  any  sheriff,  Serjeant,  or  other  officer,  to  serve  this  attachment 
upon  the  said  vessel,  wheresoever  the  same  may  be  found  with- 
in the  limits  of  this  commonwealth.  And  return  is  to  be  made 
to  the  next  term  of  the  court  of  the  said  county  of  H.  how  this 

warrant  shall  be  executed.     Given   under  my  hand  this 

day  of  . 

41.  Bond  given  to  the  officer  having  'possession  of  vessel  attached,  to 
get  the  same  restored  to  the  master.     Sess.  Acts  1826-7,  p.  23.  • 
ch.  26.  ^  1. 

Know^  all  men  &c.  (as  in  p.  152.  No.  3.) 

The  condition  of  the  above  obligation  is  such,  that  whereas 
A.  B.  made  affidavit  before  a  justice  of  the  peace  of  the  county 
of  H.  on  the day  of ,  that  C.  D.  master  &c.  (reci- 
ting the  affidavit  as  in  No.  38.),  and  thereupon  the  said  justice 
issued  an  attachment,  directed  lo  the  sheriffs,  Serjeants  and  con- 
stables of  the  commonwealth,  requiring  them,  in  their  respec- 
tive counties  and  corporations,  to  attach  the  said  vessel,  with 
her  tackle,  apparel,  bolts  and  furniture,  and  to-hold  the  same 
liable  to  such  proceedings  as  may  be  had  in  the  said  suit,  and 

the  said  attachment  has  been  levied  by  — ^^^ —  deputy  for 

sheriff"  of  the  county  of ,  who  holds  the  property  subject 

to  the  order  of  the  court,  and  the  master  of  the  said  vessel  de- 
sires that  the  vessel,  with  her  tackle,  apparel,  bolts  and  furni- 
ture, shall  be  restored  to  him  :  Now  if  the  judgment  of  the  court 
in  the  said  suit  shall  be  satisfied  in  case  the  plaintiff"  shall  reco- 
ver therein,  then  the  above  obligation  is  to  be  void,  otherwise  it 
is  to  remain  in  full  force. 

42.  Return  hy  the  oficer,  after  levying  attachment  upon  vessel.    Sess. 

Acts  1826-7,  p.  23.  ch.  26.  '^  1. 

By  virtue  of  this  attachment,  I  levied  the  same,  on  the 

day  of ,  upon  the  vessel  within  mentioned,  with  her  tackle, 

apparel,  bolts  and  furniture,  but  on  the day  of the 

same  were  restored  to  the  master,  upon  his  giving  me  bond,  with 
6r.  H.  as  surety,  payable  to  the  plaintiff",  conditioned  to  satisfy 
the  judgment  of  the  court  if  the  plaintiff"  shall  recover  in  his 
suit. 


320  Attachments. 

Or: 

By  virtue  of  this  attachment,  I  levied  the  same,  on  the 

day  of ,  upon  the  vessel  within  mentioned,  with  her  tackle, 

apparel,  bolts  and  furniture,  and  the  said  property  is  held  by  me 
subject  to  the  order  of  the  court. 

43.  Verdict  and  judgment  in  suit  instituted  for  the  recovery  of  the 
penalty  imposed  for  carrying  a  slave  out  of  the  county.  1  R.  C. 
1819,  p.  428.  <^  30.  31. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to  wit,  E.  F.  &c.  who  being  elected,  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined,  upon  their  oath 
do  say,  that  the  defendant  is  guilty  in  manner  and  form  as  in 
the  declaration  against   him  is  alleged  ;  that  the  value  of  the 

slave  in  the  declaration  mentioned  is  $ ;  and  that  the  amount 

of  all  costs  and  expenses  incurred  by  the  plaintiff  in  attempting 

to  regain  the  said  slave  is  $ .     Therefore  it  is  considered  by 

the  court  that  the  plaintiff  recover  against  the  defendant  $ , 

being  double  the  value  of  the  said  slave,  and  double  the  amount 
of  the  said  costs  and  expenses  ;  and  also  that  the  plaintiff  re- 
cover against  the  defendant  his  costs  by  him  about  his  suit  in 
this  behalf  expended.     And  the  said  defendant  in  mercy  &c. 

44.  After  judgment  for  plaintiff  in  suit  against  the  master  of  a  ves- 
sel, order,  in  the  attachment  case,  to  sell  the  vessel  in  satisfaction  of 
the  judgment.     Sess.  Acts  1826-7,  p.  24.  ch.  26.  <^  2. 

A.  B.  having  made  affidavit  before  a  justice  of  the  peace  of 

the  county  of  H.  on  the day  of ,  that  C.  D.  master 

&c.  (reciting  the  affidavit  as  in  No.  38.) ;  and  the  said  justice 
having  thereupon  issued  an  attachment,  which  has  been  levied 
on  the  said  vessel  with  her  tackle,  apparel,  bolts  and  furniture, 
by  the  sheriff  of  this  county,  who  holds  the  same  subject  to  the 
order  of  this  court;  this  day  came  the  parties  by  their  attorneys, 
and  judgment  having  been  rendered,  under  the  provisions  of  the 
before  recited  act,  against  the   said  C.  D.  in  the  suit  aforesaid, 

for  the  sum  of  $ and  the  costs,  and  it  appearing  to  the  court 

that  the  said  C.  D.  was  really  the  master  of  the  said  vessel  at 
the  time  this  attachment  was  issued,  the  said  vessel,  her  tackle, 
apparel,  bolts  and  furniture  are  deemed  and  taken  to  be  the  pro- 
perty of  the  said  C.  D.,  and  it  is  ordered  that  the  oflScer  who 
levied  the  said  attachment  sell  and  dispose  of  the  same  in  satis- 
faction of  the  said  judgment,  in  the  same  manner  as  goods  taken 
in  execution  upon  a  writ  ot fieri  facias.  And  the  said  officer  is 
required  &c.  (as  in  No.  10.) 


ComplaiTit  against  father  of  bastard  child*  321 

CHAPTER  XXVIII. 

COMPLAINT    AGAINST    FATHER   OF    BASTARD    CHILD. 


1.  Examination  of  mother  on  oath.     2  R.  C.  1819,  p.  272,  3.  ^  31. 

33.  1  Rob.  Prac.  635. 

The  examination  of -4.  B.  of  the  county  of  H.  single  woman, 
before  E.  F.  a  justice  of  the  peace  of  the  said  count}',  taken  in 
writing,  this day  of . 

The  said  A.  B.  being  duly  sworn,  saith,  that  on  the day 

of ,  at in  the  county  aforesaid,  she  the  said  A.  B. 

was  delivered  of  a  male  {or,  female)  bastard  child,  and  upon 
her  oath  she  charges  C.  JD.  with  being  the  father  of  the  said 
beistard  child. 

A,  B. 

Taken  and  signed  the  day  and  year  above  written,  ) 
before  me,  the  justice  above  named.        E.F.      > 

If  the  woman  reside  in  a  corporate  town,  say^ 

The  examination  of  A.  B.  a  single  white  woman  residing  with- 
in the  limits  of  the  city  of  R,  before ,  mayor  of  the  said 

city,  taken  in  writing,  this day  of . 

The  said  A.  B.  being  duly  sworn,  saith,  that  on  the day 

of ,  at in  the  city  aforesaid,  she  &c.  (as  before). 

Taken  and  signed  the  day  and  year  above  ) 
written,  before  me,  the  said  mayor.        ) 

2.  Warrant  to  ajyprehend  the  father.     2  R.  C.  1819,  p.  272,  3. 

§  31.  33.    1  Rob.  Prac.  635. 

H.  county,  to  wit : 

Whereas  A.  B.  of  the  said  county,  single  woman,  not  being 

a  servant  or  slave,  was,  on  the  day  of ,  at 

in  the  county  aforesaid,  delivered  of  a  male  {or,  female)  bastard 
child,  which  is  likely  to  become  chargeable  to  the  said  county, 
and  the  said  A.  B.  upon  examination  taken  in  writing  before 
me,  a  justice  of  the  peace  for  the  said  county,  upon  oath  charged 
C.  D.  with  being  the  father  of  the  said  bastard  child ;  and  the 
said  C.  D.  not  being  a  servant,  and  being  an  inhabitant  of  the 
41 


322  Complaint  against  father  of  bastard  child. 

said  county,  G.  H.  one  of  the  overseers  of  the  poor  of  the  said 
county,  has  made  application  to  me  for  the  immediate  appre- 
hending the  said  C.  D.  and  for  bringing  him  before  me,  or  be- 
fore some  other  justice  of  the  peace  of  the  said  county  :  where- 
fore I  do  command  you,  immediately  to  apprehend  the  said  C. 
D.  and  bring  him  before  me,  or  before  any  other  justice  of  the 
peace  of  the  said  county,  according  to  the  act  of  assembly  in 
such  case  made  and  provided.     Given  under  my  hand  and  seal 

this day  of  . 

[seal]. 

If  the  woman  reside  in  a  corporate  town,  say — 

City  of  R.  to  wit :  Whereas  A.  B.  a  single  white  woman  re- 
siding within  the  limits  of  the  said  city,  was,  on  the day  of 

,  at in  the  city  aforesaid,  delivered  of  a  male  {or, 

female)  bastard  child,  which  is  likely  to  become  chargeable  to 
the  said  city,  and  the  said  A.  B.  upon  examination  taken  in 
writing  before  me,  mayor  of  the  said  city,  upon  oath  charged 
C.  D.  with  being  the  father  of  the  said  bastard  child  ;  and  the 
said  C.  D.  not  being  a  servant,  and  being  an  inhabitant  of  the 
said  city ;  upon  application  made  to  me  by  G.  H.  who  resides 
in  the  said  city,  1  do  issue  this  warrant,  and  command  you,  im- 
mediately to  apprehend  the  said  C.  D.  and  bring  him  before  me, 
according  to  the  act  of  assembly  &c.  (as  before). 

3.  Recognizance  of  father  to  appear  at  next  court.     2  R.  C.  1819, 
p.  272,  3.  1  Rob.  Prac.  635. 

H.  county,  to  wit : 

Be  it  remembered,  that  upon  the  day  of in  the 

year ,   C.  D.  and  J.  K.  personally  appeared  before  me,  E. 

F.  a  justice  of  the  peace  for  the  said  county,  and  acknowledged 
themselves  jointly  and  severally  indebted  to  T.  W.  G.  governor 
of  the  commonwealth  of  Virginia,  or  his  successors,  in  the  sum 
of  $ ,  to  be  levied  of  their  and  each  of  their  goods  and  chat- 
tels, lands  and  tenements,  to  the  use  of  the  said  commonwealth, 
if  default  be  made  in  the  performance  of  the  condition  hereun- 
der written. 

The  condition  of  the  above  recognizance  is,  that  whereas  A. 
B.  of  the  county  of  H.  single  woman,  &c.  (as  in  the  warrant), 
and  the  said  A.  B.  upon  examination  taken  in  writing  before  E. 
F.  a  justice  &c.  (as  in  the  warrant,  to)  and  being  an  inhabitant 
of  the  said  county,  the  said  justice,  upon  application  made  to 
him  by  G.  H.  one  of  the  overseers  of  the  poor  of  the  said  coun- 
ty, issued  his  warrant  for  the  immediate  apprehending  the  said 


Complaint  against  father  of  bastard  child.  323 

C.  D.  and  for  bringing  him  before  the  said  justice,  or  before 
some  other  justice  of  the  peace  of  the  said  county,  and  by  vir- 
tue of  the  said  warrant  the  said  C.  D.  has  been  brought  before 
the  said  justice :  Now  if  the  said  C.  D.  shall  appear  at  the  next 
court  to  beheld  for  the  said  county  of  H.  and  abide  and  perform 
such  order  or  orders  as  shall  be  made  by  the  said  court,  then  the 
above  recognizance  is  to  be  void,  otherwise  it  is  to  remain  in  full 
force. 

If  the  looman  reside  in  a  corporate  tovm,  say — 

City  of  i?.  to  wit :  Be  it  remembered,  that  upon  the day 

of in  the  year ,  C.  D.  and  J.  K.  personally  appeared 

before  me,  E.  F.  mayor  of  the  said  city,  and  acknowledged  &c. 
(as  before.) 

The  condition  of  the  above  recognizance  is,  that  whereas  A. 

B.  a  single  white  woman  residing  within  the  limits  of  the  said 
city,  was  &c.  (following  the  warrant)  and  the  said  A.  B.  upon 
examination  taken  in  writing  before  E.  F.  mayor  of  the  said 
city,  (following  the  warrant,  to)  and  being  an  inhabitant  of  the 
said  city,  the  said  mayor,  upon  application  made  to  him  by  G. 
H.  who  resides  in  the  said  city,  issued  his  warrant  for  the  im- 
mediate apprehending  the  said  C.  D.  and  for  bringing  him  be- 
fore the  said  mayor,  and  by  virtue  of  the  said  warrant  the  said 

C.  D.  has  been  brought  before  the  said  mayor:  Now  if  the  said 
C.  D.  shall  appear  at  the  next  court  to  be  held  for  the  said  city 
of  R.  and  abide  such  order  or  orders  &c.  (as  before.) 

4.  Warrant  for  commitment  to  jail,  in  ca,se  no  recognizance  he  given 
to  appear  at  court.     2  R.  C.  1819,  p.  272,  3.  1  Rob.  Prac.  635. 

if.  county,  to  wit:  •  v 

Whereas  &c.  (as  in  No.  2.  to)  and  being  an  inhabitant  of  the 
said  county,  upon  application  made  to  me  by  G.  H.  one  of  the 
overseers  of  the  poor  of  the  said  county,  I  issued  my  warrant 
for  the  immediate  apprehending  the  said  C.  D.  and  for  bringing 
him  before  me,  or  before  any  other  justice  of  the  peace  of  the 
said  county,  and  the  said  C.  D.  having  been  brought  before  me 
by  virtue  of  the  said  warrant,  I  have  required  him  to  enter  into 

a  recognizance,  with  sufficient  security,  in  the  sura  of  S , 

upon  condition  to  appear  at  the  next  court  to  be  held  for  the 
said  co7mty,  and  to  abide  and  perform  such  order  or  orders  as  shall 
be  made  by  the  said  court ;  and  the  said  C.  D.  not  entering  into 
such  recognizance,  with  such  security :  These  are  therefore,  in 
the  name  of  the  commonwealth,  to  command  you  to  receive  the 
said  C.  D.  in  the  common  jail  of  the  said  county^  and  him  safely 


324  Complaint  against  father  of  bastard  child. 

keep  therein  until  he  shall  be  thence  discharged  by  due  course 

of  law.     Given  under  my  hand  and  seal  this day  of . 

[seal]. 

If  the  woman  reside  in  a  corporate  town,  say — 

City  of  R.  to  wit :  Whereas  &c.  (as  in  the  warrant  for  appre- 
hending, to)  upon  application  made  to  me  by  G.  H.  who  resides 
in  the  said  city,  1  issued  my  warrant  for  the  immediate  appre- 
hending the  said  C.  D.  and  for  bringing  him  before  me,  and  the 
said  C.  D.  having  been  brought  before  me  &c.  (as  before,  sub- 
stituting merely  cilij  for  county,  and,  after  the  word  abide,  omit- 
ting the  words  and  perform.) 

5.  Default  in  not  appearing  at  court  recorded,  and  scire  facias 
awarded  upon  recognizance.  2  R.  C.  1819,  p.  272.  1  Rob. 
Prac.  635. 

C.  D.  who  was  charged  by  A.  B.  single  woman,  with  being  the 
father  of  her  bastard  child,  having,  when  brought  before  a  jus- 
tice of  the  peace  of  this  county  upon  that  charge,  entered  into 

a  recognizance  with  J.  K.  his  surety,  in  the  sum  of  $ , 

upon  condition  to  appear  at  this  court,  and  abide  and  perform 
such  order  or  orders  as  should  be  made  by  the  court ;  the  said  C. 
D.  was  this  day  solemnly  called,  but  came  not.  Whereupon  it 
is  ordered  that  a  writ  of  scire  facias  be  issued  against  the  said 
C.  D.  and  his  surety  aforesaid,  upon  the  said  recognizance ;  and 
the  amount  of  the  recovery  thereupon  is  to  be  paid  to  the  over- 
seers of  the  poor  of  the  county,  for  the  use  of  the  said  poor. 

6.  Case  examined  into  by  the  court,  and  judgment  given  against  the 
father.     2  R.  C.  1819,  p.  272,  3.  <^  31.  33.    1  Rob.  Prac.  635. 

E.  F.  a  justice  of  the  peace  of  this  county,  this  day  returned 
an  examination  of  A.  B.  of  this  county,  single  woman,  taken 
before  him  in  writing,  upon  oath,  upon  which  examination  the 
said  A.  B.  charged  C.  D.  with  being  the  father  of  a  bastard 
child  of  which  she  had  been  delivered ;  and  the  said  justice 
also  returned  a  warrant  issued  by  him,  upon  application  made 
to  him  by  G.  H.  one  of  the  overseers  of  the  poor  of  this  county, 
for  the  apprehension  of  the  said  C.  D.,  together  with  a  recogni- 
zance entered  into  by  the  said  C.  D.  when  brought  before  him, 
conditioned  to  appear  here,  and  abide  and  perform  such  order  or 
orders  as  should  be  made  by  the  court.  Whereupon  the  said 
C.  D.  appeared  accordingly.  {Or,  after  the  words  *♦  apprehension 
of  the  said  C.  i>."  and  certified  that  the  said  C.  D.  when  brought 


Complaint  against  father  of  bastard  child.  325 

before  him,  not  entering  into  a  recognizance  with  security  to  ap- 
pear at  this  court,  was  committed  to  the  common  jail  of  the 
county.     Whereupon  the  said  C.  D.  was  brought  into  court.) 

jy*  the  woman  reside  in  a  corporate  towriy  say — 

E.  F.  mayor  of  this  city,  this  day  returned  an  examination  of 
A.  B.  a  single  white  woman  residing  within  the  limits  of  this 
city,  taken  before  him  in  writing,  upon  oath,  upon  which  exami- 
nation &c.  (as  before) ;  and  the  said  mayor  also  returned  a  war- 
rant issued  by  him,  upon  application  made  to  him  by  G.  H.  who 
resides  in  the  said  city,  for  the  apprehension  of  the  said  C.  D., 
together  with  a  recognizance  &c.  (as  before,  omitting  merely  the 
words  and  perform^  and  substituting  city  for  county.) 

And  after  either  form,  proceed  as  follows : 

And  the  said  A.  B.  being  sworn  and  examined,  the  court, 
upon  the  circumstances  of  the  case,  doth  adjudge  the  said  C.  D. 
to  be  the  father  of  the  said  bastard  child,  and  that  the  said  child  is 
likely  to  become  chargeable  to  this  county  {or,  city)  for  the  term 

of years  from  the  birth  of  the  said  child,  to  wit,  for 

years  from  the day  of .    And  the  court,  proceeding 

to  take  order  for  keeping  the  said  child,  doth  charge  the  said  C. 
J),  with  the  payment,  for  the  maintenance  of  the  said  child,  of 

$ annually  for  the  term  aforesaid,  in  case  the  said  child 

shall  live  so  long,  and  if  the  child  shall  die  before  the  expira- 
tion of  the  term,  then  for  so  many  years  of  the  said  term  as  the 

child  shall  live ;  which  sum  of  $ so  charged  upon  the 

said  C.  D.  is  to  be  paid  by  him,  at  the  end  of  each  year,  to  the 
overseers  of  the  poor  of  this  county.*  And  the  court  doth  order 
that  the  said  C.  D.  enter  into  a  recognizance  with  sufficient  se- 
curity, before  this  court,  in  the  sum  of  $ ,  payable  to  the 

governor  of  this  commonwealth  for  the  time  being,  and  his  suc- 
cessors, to  observe  audi  perform  the  order  of  the  court  aforesaid. 

*  If  the  woman  reside  in  a  corporate  town,  say — "  to  the  serjeant  of 
this  city,  to  be  applied  under  the  directions  of  this  court,  or  of  the  over- 
seers of  the  poor  of  this  city." 

t  If  the  woman  reside  in  a  corporate  town,  the  words  observe  and 
may  be  omitted. 


326  Complaint  against  father  of  bastard  child. 

7.  Recoo-nizance  required  by  t fie  court  not  being  given,  order  commit- 
ting Ike  father  to  jail.  2  R.  C.  1819,  p.  272,  3,  4.  <^  31.  32. 
33.     1  Rob.  Prac.  635. 

After  the  last  form,  proceed  as  follows :  Whereupon,  the  said 
C.  D.  refusing  to  enter  into  such  recognizance,  it  is  ordered  that 
he  be  committed  to  the  common  jail  of  this  county  {or,  city) 
there  to  remain  without  bail  or  mainprize,  until  he  shall  enter 
into  such  recognizance,  or  until  he  shall  discharge  himself  by 
taking  the  oath  of  an  insolvent  debtor  and  delivering  in  a  sche- 
dule of  his  estate,  in  the  manner  directed  by  law  for  debtors  in 
execution,  or  until  the  overseers  of  the  poor*  shall  consent  to  his 
discharge. 

*  If  the  woman  reside  in  a  corporate  town,  instead  of  the  overseers  of 
the  poor,  say,  this  court. 

S.  Entry  of  the  recognizance  when  given  in  court.     2  R.  C.  1819, 
p.  272,  3.  4.  ^  31.  33.     1  Rob.  Prac.  635. 

After  No.  6.  proceed  os  follows :  Whereupon  the  said  C.  D. 
and  A.  W.  and  B.  D.  his  sureties,  here  in  court  acknowledge 
themselves  to  be  jointly  and  severally  indebted  to  T.  W.  G.  go- 
vernor of  this  commonwealth,  and  his  successors,  in  the  sum  of 

$ ,  of  their  and  each  of  their  goods  and  chattels,  lands 

and  tenements  to  be  levied,  and  to  the  said  governor  and  his 
successors,  for  the  use  of  the  commonwealth,  rendered  ;  yet 
upon  this  condition,  that  if  the  said  C.  D.  shall  observe  and*  per- 
form the  order  of  this  court  aforesaid,  then  this  recognizance  is 
to  be  void. 

*  If  the  woman  reside  in  a  corporate  town,  the  words  observe  and 
may  be  omitted. 

9.  Notice  of  motion  against  the  father  and  his  sureties,  for  not  pay- 
ing the  money  charged  upon  him.  2  R.  C.  1819,  p.  272,  3,  4.  ^ 
31.  33. 

To  C.  D.,  A.  W.  and  B.  D. 

Whereas,  at  a  court  held  for  H.  county  {or,  for  the  city  of  R.) 

the day  of ,  the  said  court  adjudged  you  the  said 

C.  D.  to  be  the  father  of  a  bastard  child  whereof  had 

been  delivered,  and  that  the  said  child  was  likely  to  become 

chargeable  to  the  said  county  {or,  city)  for  the  term  of 

years  from  the  birth  of  the  said  child,  to  wit,  for years 

from  the day  of ;  and  the  court,  proceeding  to  lake 


Complaint  against  father  of  bastard  child.  327 

order  for  keeping  the  said  child,  did  charge  you  the  said  C.  D. 
with  the  payment,  for  the  maintenance  of  the  said  child,  of 

$ annually  for  the  term  aforesaid,  in  case  the  said  child 

should  live  so  long,  and  if  the  child  should  die  before  the  expi- 
ration of  the  term,  then  for  so  many  years  of  the  said  term  as 

the  child  should  live,  which  sum  of  $ ,  so  charged  upon 

you  the  said  C.  D.,  was  to  be  paid  by  you,  at  the  end  of 
each  year,  to  the  overseers  of  the  poor  of  the  said  county  {or, 
if  in  a  corporate  town,  say,  to  the  serjeant  of  the  said  city,  to  be 
applied  under  the  directions  of  the  said  court,  or  of  the  over- 
seers of  the  poor  of  the  said  city) ;  and  you  the  said  C.  D.  did 
thereupon  enter  into  a  recognizance,  with  the  said  A.  W.  and 

B.  D.  your  sureties,  before  the  said  court,  in  the  sum  of  $ , 

to  observe  and  perform  {or,  to  perform)  the  order  aforesaid  of 
the  said  court :  And  whereas  you  the  said  C.  D.  have  not  paid 
the  money  so  charged  upon  you,  to  the  overseers  of  the  poor  of 
the  said  county,  for  {or,  to  the  serjeant  of  the  said  city,  to  be 
applied,  under  the  directions  of  the  said  court,  or  of  the  over- 
seers of  the  poor  of  the  said  city,  to)  the  maintenance  of  the 
said  child,  but  have  therein  made  default,  in  this,  that  you  have 

not  paid  the  sum  of  $ ,  which  ought  to  have  been  paid  at 

the  end  of  years  from  the day  of  :  Notice  is 

therefore  given  to  you  the  said  C.  D.,  A.  W.  and  B.  D.  that  a 
motion  will  be  made  by  the  overseers  of  the  poor  of  the  said 
county  of  H.  {or,  by  the  serjeant  of  the  said  city — or,  the  over- 
seers of  the  poor  of  the  said  city)  to  the  court  of  the  said  coun- 
ty {or,  city)  on  the  first  day  of  the  next  term,  to  enter  up  judg- 
ment and  award  execution  against  you    for  the  said    sum  of 

$ ,  which  the  said  C.  D.  has  failed  to  pay  as  aforesaid. 

Dated  this day  of in  the  year . 


328  Claims  to  escheated  lands  or  their  ^proceeds. 

CHAPTER  XXIX. 

CLAIMS  TO  ESCHEATED  LANDS  OR  THEIR  PROCEEDS. 


1.  Information  by  attorney  for  the  commonwealth  for  an  intrusion 
upon  land  which  was  escheated  and  of  which  the  commonwealth  af- 
terwards had  possession. 

Concerning  this  information,  see  the  case  of  The  Commonwealth  v. 
Hite,  6  Leigh  588. 

2.  After  inquisition  of  escheat,  claim  to  the  lands  by  monstrans  de 
droit  and  traverse.  1  R.  C.  1819,  p.  295.  -^  7.  Id.  p.  298,  § 
18.  19.  1  Rob.  Prac.  500.  French  ^  Brown  v.  The  Common- 
wealth, 5  Leigh  512. 

A.  B.  V.  The  commonwealth.  Monstrans  de  droit  and  plea  of 
traverse  to  an  inquisition  taken  on  200  acres  of  land  in  Meck- 
lenburg. 

And  the  said  A.  B.  by  J.  B.  his  attorney,  comes  and  prays 
oyer  of  the  inquisition  aforesaid,  which  is  read  to  him  in  these 
words :  '•  An  inquisition  indented"  &c.  Whereupon  the  said 
A.  B.  saith  that  the  said  200  acres  of  land  and  premises  ought 
not  to  be  sold  and  condemned,  because  he  saith  that  the  said 
lands  and  premises  are  the  property  of  him  the  said  A.  B.  as 
will  appear  by  deed  from  a  certain  II.  S.  bearing  date  the  18th 
day  of  March  1765,  and  duly  recorded  in  the  county  court  of 
M.  aforesaid.     And  this  he  is  ready  to  verify  &c. 

And  the  said  A.  B.  by  his  attorney  aforesaid,  for  plea,  saith 
that  the  said  200  acres  of  land  in  the  said  inquisition  mentioned 
are  the  property  of  him  the  said  A.  B.  who  is  a  citizen  of  this 
commonwealth,  without  that  the  same  are  the  property  of  the 
said  A.  S.  Sf  Co.  or  any  other  british  subject  whatsoever;  and 
this  he  prays  may  be  enquired  of  by  the  country  &c. 


Claims  to  escheated  lands  or  their  proceeds.  329 

3.  Issm  made  up  on  monstrans  de  droit  and  traverse.  1  R.  C.  1819, 
p.  295.  <^  7.  Id.  p.  298.  <^  18.  19.  1  Rob.  Prac.  500.  Fre7ich 
^  Brown  v.  The  Commonwealth,  5  Leigh  512. 

A.  B.  plaintiff, ")  Upon  a  monstrans  de  droit  and 

j  traverse  to  an  inquest  of  office 
against  ^ taken  tiie   18tii  day  of  July 

1782,  before  C.  C.  escheator 
The  commonwealth  of  Virginia,  j  of  M.  county. 

This  day  came  as  well  the  plaintiff,  by  J.  B.  his  counsel,  as 
the  attorney  general  for  the  commonwealth,  and  it  appearing, 
from  a  deed  produced  in  court,  that  the  said  A.  B.  hath  some 
title  to  the  estate  contained  in  the  said  inquest  of  office,  it  is 
therefore  ordered  that  the  said  monstrans  de  droit  and  traverse  be 
not  dismissed,  but  that  the  attorney  general  do  reply  thereto. 
And  thereupon  an  issue  was  made  up,  ore  tenus,  the  said  attor- 
ney general  having  replied  that  the  estate  in  the  said  inquest  ot 
office  found  is  not  the  property  of  the  plaintiff. 

4.  Verdict  found  for  the  claimant  of  the  escheated  lands,  and  judg- 
ment that  inquisition  be  quashed.  1  R.  C.  1819,  p.  295.  §  7. 
Id.  p.  298.  <^  18.  19.  1  Rob.  Prac.  500.  French  ^  Brown  v. 
The  Commonwealth,  5  Leigh  512. 

This  day  came  as  well  the  plaintiff  by  his  attorney,  as  the  at- 
torney general  for  the  commonwealth,  and  thereupon  came  a 
jury,  to  wit,  N.  A.  &c.  who  being  elected,  tried  and  sworn  the 
truth  to  speak  upon  the  issue  joined,  upon  their  oath  do  say  that 
the  200  acres  of  land  in  the  said  inquisition  mentioned  are  the 
property  of  the  plaintiff,  as  in  pleading  he  hath  alleged.  There- 
fore it  is  considered  by  the  court  that  the  said  inquisition,  as  to 
the  said  200  acres  of  land,  be  quashed. 

5.  Issue  made  up  in  another  case;  verdict  for  claimant;  and  Judg- 
ment that  inquisition  be  quashed,  and  the  hands  of  the  common- 
wealth amoved. 

This  day  came  &c.  and  the  said  attorney  general  having  re- 
plied that  the  said  R.  L.  junior  is  a  british  subject,  within  the 
meaning  of  the  act  of  the  general  assembly  concerning  escheats 
and  forfeitures  from  british  subjects,  an  issue  was  made  up,  and 

thereupon  came  a  jury,  to  wit,  J.  J.  Sec.  who  being  &c. 

oath  do  say  that  the  said  R.  L.  Junior  is  not  a  british  subject 
within  the  meaning  of  the  said  act,  as  in  pleading  he  hath  al- 
leged. Therefore  it  is  considered  by  the  court  that  the  said  in- 
quest of  office  be  quashed,  and  that  the  hands  of  the  common- 
42 


330  Claims  to  escheated  lands  or  their  jrroceeds,  < 

wealth,  from  the  tract  of  land  with  its  appurtenances  thereby 
escheated,  be  amoved. 

6.  Issue  made  up  in  another  case  ;  verdict  for  claimant  of  a  leasehold 
interest ;  and  judgment  that  such  interest  he  reserved  in  the  sale. 

This  day  came  &c.  and  the  said  attorney  general  having  re- 
plied that  the  plaintiff  hath  no  right  to  the  said  100  acres,  part 
of  the  land  in  the  said  inquisition  found,  an  issue  was  made  up, 

and  thereupon  came  &c.  who  being  &c. oath  do  say  that 

the  said  J.  P.  hath  a  right  to  the  said  100  acres  for  the  term  of 

years  from  the day  of ,  paying  the  annual 

rent  of  530lbs.  of  tobacco  during  the  said  term.  Therefore  it 
is  considered  by  the  court  that  the  said  interest  of  the  plaintiff 
in  the  said  100  acres  of  land,  for  the  term  aforesaid,  be  reserv- 
ed to  him  in  the  future  sale  of  the  said  estate,  the  said  plaintiff 
paying  the  annual  rent  aforesaid  during  the  said  term. 

7.  Petition  by  creditor  of  person  whose  lands  have  been  escheated. 
1  R.  C.  1819,  p.  297.  ^  14.  1  Rob.  Prac.  636.  Watson  v. 
Lyle's  admW,  4  Leigh  236. 

To  the  court  of  hustings  for  the  city  of  R. 

The  petition  of  ^.  B.  respectfully  represents,  that  C  D.  died 
indebted  to  him  the  sum  of  $  100.  with  interest  thereon  from 
the  1st  day  of  April  1817,  for  which  he  holds  the  promissory 
note  of  the  said  C.  D. ;  that  the  said  C.  D.  had  not  personal  es- 
tate sufficient  to  pay  his  debts,  but  the  said  personal  estate  has 
been  applied  in  paying  them  as  far  as  it  would  extend,  and  the 
said  sum  of  $  100.  with  interest  as  aforesaid,  is  still  bona  fide 
due  and  owing  to  j^our  petitioner  at  this  time.  Your  petitioner 
shews  that  the  said  C.  D.  died  seized  of  lands  in  this  city,  which 
have  been  escheated  to  the  commonwealth  by  J.  R.  escheator 
of  this  city.  And  he  prays  that  the  said  J.  R.  escheator  as 
aforesaid,  may  be  made  defendant  hereto,  and  that  the  court 
may  proceed  to  judgment  according  to  the  right  of  the  case,  and 
render  the  same  for  what  shall  appear  to  be  due  to  him. 

A.B. 

A.  B.  the  petitioner  above  named  maketh  oath  and  saith,  that 
the  amount  of  his  demand  is  bona  fide  due  and  owing  at  this 
time.  A.  B. 

Sworn  to  by  the  said  A.  B.  this day  of ,  before 

me,  an  alderman  of  the  city  of  R, 


Claims  to  escheated  lands  or  their  proceeds.  331 

8.  Judgment  on  "petition  by  creditor  of  pei'son  whose  lands  have  been 
escheated.  1  R.  C.  1819,  p.  297.  §  14.  1  Rob.  Prac.  636. 
Watson  V.  Lyle's  admW^  4  Leigh  236. 

D.  C,  G.  F.  and  J.  M.  ex'ors  of  J.  B.  deceased,  petitioners, 

against 
J.  R.  escheaior  of  the  city  of  R.  defendant. 

Upon  a  petition  exhibited  by  the  petitioners,  as  creditors  of  J. 
M.  deceased,  who  died  seized  of  lands  in  this  city,  which  have 
been  escheated  to  the  commonwealth. 

This  day  came  as  well  the  petitioners  by  their  attorney,  as 
the  attorney  for  the  commonwealth,  who  were  fully  heard. 
Whereupon,  it  appearing,  as  well  by  the  affidavit  of  the  said  G. 
F.  to  the  petition  annexed,  as  by  other  evidence  adduced  by  the 
petitioners,  that  the  sum  of  S  100.  with  interest  thereon  from  the 
first  day  of  April  1817,  was  bona  Jide  due  and  owing  to  the  said 
petitioners,  at  the  time  of  preferring  the  said  petition  ;  and  it 
also  appearing  that  W.  D.  W.  serjeant  of  this  city,  and  admi- 
nistrator of  the  personal  estate  of  the  said  J.  M.  deceased,  had 
fully  administered  all  the  goods  and  chattels  of  the  said  dece- 
dent, in  his  hands  to  be  administered,  before  the  preferring  of 
the  said  petition ;  it  is  therefore  considered  by  the  court  that  the 
petitioners  recover  the  said  sum  of  $  100.  with  interest  thereon 
to  be  computed  after  the  rate  of  six  per  centum  per  annum 
from  the  said  first  day  of  April  1817  till  payment,  and  their 
costs  by  them  in  this  behalf  expended  ;  to  be  paid  and  satisfied 
out  of  the  proceeds  of  the  sale  of  the  lands  of  the  said  J.  M. 
deceased. 


332  Demands  against  the  commonwealth. 

CHAPTER  XXX. 

DEMANDS    AGAINST    THE    COMMONWEALTH. 


1.  Petition  by  person  having  demand  against   the  commonwealth. 
1  Rob.  Prac.  33.  4,  5.  636,  7.     Sess.  Acts  1838,  p.  27.  ch.  14. 

To  the  circuit  superior  court  of  law  and  chancery  for  the 
county  of  H.  and  city  of  R. — The  petition  of  A.  B.  respectfully 
represents  that  &c.  (stating  the  nature  of  the  claim  against  the 
commonwealth) ;  and  the  same  has  been  presented  to  the  audi- 
tor, who  has  disallowed  the  demand.  Your  petitioner  thinks 
himself  aggrieved  thereby,  and  prays  this  court  for  redress. 

2.  Answer  of  auditor  to  'petition  of  person  having  demand  against 
the  commonwealth.  1  Rob.  Prac.  33,  4.  5.  636,  7.  Sess.  Acts 
1838,  p.  27.  ch.  14. 

The  answer  of  J.  E.  H.  auditor  of  public  accounts,  to  a  peti- 
tion presented  by  A.  B.  to  the  circuit  superior  court  of  law  and 
chancery  for  the  county  of  H.  and  city  of  R. 

The  reasons  of  this  defendant  for  not  allowing  the  said  claim, 
and  the  objections  which  in  his  opinion  the  commonwealth  ought 
to  make  thereto,  are  as  follows  ;  (state  them.) . 


,  Judgment  upon  petition  of  person  having  demand  against  the 
monwealth.     1  Rob.  Prac.  33.  4,  5.  636,  7.     Sess.  Acts  1 


com- 

1838, 

p.  27.  ch.  14. 


This  day  came  A.  B.  by  his  attorney,  and  presented  a  peti- 
tion for  redress  against  a  decision  of  the  auditor  disallowing  a 
demand  of  his  against  the  commonwealth ;  and  the  auditor 
forthwith  filed  his  answer  to  the  said  petition.  Whereupon,  the 
evidence  offered  on  each  side  being  heard,  it  seems  to  the  court 

that  &c.     Therefore  it  is  considered  that  &c.     And  the 

requiring  it,  the  court  doth  certify  that  the  material  facts  proved 
in  this  case  are  as  follows  :  (state  them) ;  and  this  certificate  is 
made  a  part  of  the  record  in  the  cause. 


Correction  of  errors  in  same  court.  333 

CHAPTER  XXXI. 

CORRECTION   OF    ERRORS   IN    SAME    COURT. 


1.  Order  of  court  correcting  mistake  in  proceedings  in  the  office  du- 

ring preceding  vacation.     1  Rob.  Prac.  639. 

The  plaintiff,  by  his  counsel,  alleging  that  an  error  has  hap- 
pened at  the  rules  in  receiving  the  three  pleas  filed  in  each  of 
these  causes,  moved  the  court  to  set  aside  the  act  of  the  clerk 
in  receiving  the  said  pleas,  on  the  ground  that  they  ought  to  have 
been  proved  by  the  oath  of  the  defendant  S.  as  well  as  of  the 
said  defendant  G.  and  that  as  to  the  defendant  G.  the  affidavit 
was  defective  in  not  alleging  the  truth  of  the  facts  stated  in  the 
pleas,  with  the  certainty  and  positiveness  required  by  law ;  and 
furthermore  objected,  that  under  the  statute  under  which  alone 
such  pleas  can  be  filed,  the  defendant  is  limited  to  one  plea, 
and  moved  the  court  to  direct  the  clerk  to  reject  all  the  pleas, 
unless  the  defendant  would  elect  one  of  said  pleas,  or  some  one 
plea  under  the  said  statute.  And  the  questions  of  law  arising 
upon  the  said  motions  being  argued,  the  court  is  of  opinion  that 
the  said  defendants  are  not  limited  bj''  the  said  statute  to  one 
plea,  and  that  as  to  the  defendant  G.  the  affidavit  is  sufficient ; 
but  the  court  is  further  of  opinion  that  the  said  pleas  were  im- 
properly received,  because  they  were  not  verified  by  the  defen- 
dant S.  And  the  court,  proceeding  to  correct  the  error  commit- 
ted in  receiving  the  same,  doth  order  that  the  act  of  the  clerk  in 
receiving  the  said  pleas  be  set  aside,  and  that  the  defendants  be 
allowed  to  file  other  pleas,  properly  verified,  at  the  next  rules, 
and  that  the  causes  be  proceeded  in  at  the  rules  until  issues  are 
made  up  in  law  or  in  fact,  or  until  the  same  be  otherwise  pro- 
perly matured. 

2.  Notice  of  application  to  judge  in  vacation  to  amend  Judgment. 

1  Rob.  Prac.  639. 

To  N.M. 

Sir, 

In  the  record  of  a  judgment  of  the  circuit  superior 
court  of  law  and  chancery  for  the  county  of  H.  rendered  in  our 
favour  against  you,  there  being  a  mistake  of  a  sum  of  money. 


334  Correction  of  errors  in  same  court. 

and  there  being,  among  the  record  of  the  proceedings  in  the 
suit  in  which  the  said  judgment  was  rendered,  a  bond  whereby 
the  said  judgment  may  be  safely  amended,  notice  is  hereby 

given  to  you,  that  on  the day  of ,  at  the  office  of  the 

said  court,  between  the  hours  of and ,  application  will 

be  made  to  the  judge  of  the  said  court  to  amend  the  said  judg- 
ment according  to  the  truth  and  justice  of  the  case.  Given  un- 
der our  hands  this day  of . 

T.  T. 

W.H. 

3.  Amendment  of  judgment  by  judge  in  vacation.    1  Rob.  Prac.  639, 

T.  T.  and  W.  H.  plaintiffs  v.  N.  M.  defendant. 

The  defendant  in  this  case  having  been  served  with  the  no- 
tice hereto  annexed,  and  it  appearing  to  me  that  there  was  a 
mistake  in  the  sum  of  money  for  which  the  judgment  was  ren- 
dered in  this  case,  in  the  circuit  superior  court  of  law  and  chan- 
cery for  the  county  of  H.  on  the  13th  day  of  April  1S30,  to 
the  amount  hereafter  stated,  which  mistake  may  be  safely 
amended  by  the  bond  on  which  the  action  is  founded  ;  it  is 
therefore  considered  by  me  that  the  said  judgment  be  amen- 
ded in  this,  that  the  said  judgment  shall  be  discharged  by  the 
payment  of  $23673.80  cents  principal  sum,  with  interest  at  the 
rate  of  six  per  centum  per  annum  from  the  first  day  of  Septem- 
ber 1815  till  paid,  and  by  the  further  payment  of  the  interest  at 
the  rate  of  six  per  centum  per  annum  on  $  11836.90  cents  from 
the  first  day  of  September  1815  till  the  first  day  of  September 
1820,  which  interest  amounts  to  $3551.07  cenls,  and  such  other 
sum  or  sums  as  may  be  hereafter  found  due,  upon  a  writ  or  writs 
of  scire  facias  being  sued  out  on  the  said  judgment.  And  on 
the  motion  of  the  plaintiffs,  it  is  further  considered  by  me  that 
the  writ  of  capias  ad  satisfaciendum  issued  by  the  clerk  of  the 
said  court,  on  the  14th  day  of  April  1830,  against  the  body  of 
the  said  defendant,  be  quashed,  and  the  defendant  be  discharged 
from  custody  under  the  said  execution. 

Given  under  my  hand,  in  the  clerk's  ofl5ce  of  said  court,  in 
the  vacation  thereof,  this  28th  day  of  April  1830. 

W.B. 
judge  of  the  said  court. 
Truly  recorded. 

J.  R.  clerk. 


Correction  of  errors  in  same  court.  335 

4.  Notice  of  application  to  court  to  amend  judgment.  1  Rob.  Prac. 
639.  Commonwealth  v.  Wiiistons,  5  Rand.  546.  Eubank  pothers 
V.  RalWs  ex' or,  4  Leigh  308.  Shellon^ s  ex' ors  v.  Welsh's  admWsj 
7  Leigh  175. 

To  G.  W.,  J.  W.  and  P.  W. 

Take  notice  that  instructions  will  be  given  the  attorney  gene- 
ral to  move  the  general  court,  on  the  first  day  of  the  session  of 
the  said  court  to  be  holden  in  November  next,  to  amend  the 
judgment  obtained  against  you  by  the  commonwealth  on  the  16th 
of  June  last,  upon  your  bond  executed  by  you  on  the  21st  of 
June  1819,  in  the  penalty  of  S 24722.88  cents,  conditioned, 
among  other  things,  for  the  payment  of  $  4128.48  cents  on  or  be- 
fore the  second  day  of  March  1824,  with  six  per  centum  per 
annum  interest  thereon  from  the  19th  day  of  April  1817  till  pay- 
ment ;  which  said  judgment  was  erroneously  entered,  in  this, 
that  it  is  made  to  carry  interest  from  the  second  day  of  March 
1824,  instead  of  the  aforesaid  period,  the  19th  day  of  April 
1817. 

J.  E.  H. 
auditor  of  public  accounts. 

Auditor's  ofl&ce,  August  17.  1824. 

5.  Judgment  amended  by  the  court.  1  Rob.  Prac.  639.  Common- 
wealth V.  Winstons,  5  Rand.  546.  Eubank  Sf  others  v.  RalWs 
ex'oTi  4  Leigh  303.  Shelion's  ex'ors  v.  Welshes  adm'rs,  7  Leigh 
175. 

This  day  came  the  attorney  general  on  behalf  of  the  com- 
monwealth, and  produced  a  notice  in  writing,  to  G.  W.,  J.  W. 
and  P.  W.  that  an  application  would  be  made  to  this  court,  on 
this  day,  to  amend  a  judgment  rendered  against  them  in  this 
court  on  the  16ih  of  June  1824,  on  behalf  of  the  commonwealth. 
Whereupon  came  also  the  defendants  by  their  attorney,  and  the 
attorney  general  and  the  defendants  being  fully  heard,  it  seems 
to  the  court  that  in  the  record  of  the  said  judgment  there  is  a 
mistake  in  carrying  the  interest  from  the  second  da}'  of  March 
1824,  instead  of  from  the  19th  day  of  April  1817,  and  that  the 
judgment  may  be  safely  amended  by  the  bond  upon  which  the 
same  is  rendered,  which  bond  is  filed  with  the  papers  of  the 
case.  Therefore  it  is  considered  that  the  said  judgment  be  so 
amended  as  to  carry  six  per  centum  per  annum  interest  on  the 
sum  of  $4128.48  cents  therein  mentioned,  from  the  19th  day  of 
April  1817  till  payment,  instead  of  from  the  2d  day  of  March 
1824,  as  was  erroneously  entered ;  and  also  that  the  common- 
wealth recover  against  the  defendants  the  costs  of  this  motion. 


336  Correction  of  errors  in  same  court. 

6.  Excess  in  judgment  released  by  plaintiff  at  a  subsequent  term,  to 

cure  error.     1  Rob.  Prac.  643,  4. 

In  this  case,  in  wliich  judgment  was  rendered  at  the  last  term, 
the  bond,  by  mistake,  being  conditioned  for  the  payment  of  a 
larger  sum  of  money  than  by  law  ought  to  have  been  required 

thereby,  the  plaintiff  here  in  court  releases  $ with  interest 

thereon  from  the  day  of ,  being  the  excess,  and 

agrees  that  the  said  judgment  may  be  discharged  by  the  pay- 
ment of  the  residue,  of  $ ,  with  interest  thereon  from  the  said 

day  of till  payment,  and  the  costs. 

Or: 

In  this  case,  verdict  having  been  rendered  at  the  last  term  for 
more  damages  than  the  plaintiff  demanded,  and  judgment  having 
been  given  accordingly,  the  plaintiff  here  in  open  court  releases 

$ parcel  of  the  damages  assessed,  being  the  excess,  and 

acknowledges  that  the  whole  amount  which  he  is  to  receive  by 

virtue   of  the   said  judgment   is  $ ,  with  interest  thereon 

from  the day  of till  paid,  and  the  costs. 

7.  Excess  ill  judgment  released  in  vacation  by  plaintiff,  by  deed  un- 

der hand  and  seal.     1  Rob.  Prac.  643,  4. 

Whereas  a  certain  bond,  upon  which  judgment  was  rendered 
at  the  last  term  of  the  circuit  superior  court  of  law  and  chance- 
ry for  the  county  of  H.  in  my  favour  against  C.  D.  and  E.  F., 
by  mistake  is  conditioned  for  the  payment  of  a  larger  sum  of 
money  than  by  law  ought  to  have  been  required  thereby ;  now 
therefore,  I  the  said  A.  B.  do  hereby  release  to  the  said  C.  D. 

and  E.  F.   $ with  interest  thereon  from  the  day  of 

,  being  the  excess,  and  do  agree  that  the  said  judgment 

may  be  discharged  by  the  payment  of  the  residue,  of  $ , 

with  interest  thereon  from  the  said day  of till  pay- 
ment, and  the  costs.     Given  under  my  hand  and  seal  this  ■ 

day  of . 

[seal]. 

Witnessed  by  me,  the  clerk  {or,  deputy  ) 
clerk)  of  the  said  court.         G.  H.      ) 

Or: 

Whereas,  at  the  last  term  of  the  circuit  superior  court  of  law 
and  chancery  for  the  county  of  if.  in  a  suit  wherein  I  was  plain- 
tiff and  C.  D.  was  defendant,  verdict  was  rendered  for  me  for 
more  damages  than  I  demanded,  and  judgment  was  given  for  the 
same ;  now  therefore,  I  the  said  A.  B.  do  hereby  release  to  the 
said  C.  D.  $ ,  parcel  of  the  damages  assessed,  being  the  ex- 
cess, and  acknowledge  that  the  whole  amount  which  I  am  to  re- 


Correction  of  errors  in  same  court.  337 

ceive  by  virtue  of  the  said  judgment  is  $ ,  with  interest 

thereon  from  the day  of till  paid,  and  the  costs. 

Given  under  my  hand  and  seal  this day  of . 

[seal]. 
Witnessed  by  me,  the  clerk  (or,  deputy  ) 
clerk)  of  the  said  court.       G.     H.      ) 

8.  Petition  for  writ  of  error  coram  vobls.      1  Rob.  Prac.  644,  .5. 
Sess.  Acts  1838,  p.  74.  ch.  96.  §  1. 

To  W.  B.  esquire,  judge  of  the  circuit  superior  court  of  law  and 
chancery  for  the  county  of  H. 
Your  petitioners  J.  fV.,  G.  M.  W.,  N.  W.  and  W.  TV.  (the  said 
N.  and  W.  being  infants,  by  the  said  J.  their  next  friend)  re- 
spectfully represent,  that  your  petitioners,  as  the  heirs  of  ^.  W. 
deceased,  were  impleaded  in  the  said  court  by  JV.  G.  adminis- 
trator of  J.  G.  deceased,  in  an  action  of  debt,  in  which  said  ac- 
tion such  proceedings  were  had,  that  at  a  term  of  said  court 
held  on  the day  of ,  the  conditional  judgment  pre- 
viously entered  in  the  oflRce  of  said  court  against  your  petitioners 
for  default  of  appearance,  was  finally  confirmed  against  them 
for  the  sum  of  ^  1524.11.  the  debt  in  the  declaration  mentioned, 
and  costs,  but  to  be  discharged  by  the  payment  of  £  141.15.5. 
with  interest  to  be  computed  thereon  after  the  rate  of  six  per 
centum  per  annum  from  the  second  day  of  July  1803  till  pay- 
ment, and  the  costs ;  all  which  will  more  fully  appear  by  refer- 
ence to  the  record  of  the  proceedings  aforesaid,  hereunto  an- 
nexed. Your  petitioners  are  advised  that  there  is  error  in  the 
said  judgment,  in  this,  that  at  the  time  when  it  was  obtained, 
your  petitioners  the  said  N.  and  W.  were  infants  under  the  age 
of  21  years,  and,  by  reason  of  their  said  infancy,  incapable  of 
defending  themselves,  nor  was  any  person  assigned  as  guardian, 
or  otherwise,  to  defend  them  therein.  Wherefore  your  petition- 
ers pray  a  writ  of  error  coram  vobis,  in  order  that  the  error  afore- 
said may  be  inquired  into,  and  the  said  judgment  reversed. 

9.   Writ  of  error  coram  vobis  awarded.     1  Rob.  Prac.  644,  5. 

On  the  petition  of  J.  W.  and  N.  W.  (the  said  N.  being  an  in- 
fant, by  the  said  /.  his  next  friend)  a  writ  of  error  coram  vobis  is 
awarded  them  to  a  judgment  of  this  court  recovered  on  the  14th 
day  of  November  1823,  by  W.  G.  administrator  of  J.  G.  de- 
ceased, against  the  said  J.  W.  and  N.  W.  And  thereupon  a 
writ  of  scire  facias  is  awarded  against  the  said  W.  G.  adminis- 
trator as  aforesaid,  to  warn  him  to  appear,  to  hear  the  record  and 
proceedings  in  the  said  suit,  returnable  here  on  Wednesday  next. 
43 


338  Correction  of  errors  in  same  court. 

10.   Writ  of  error  coram  vohis.*     1  Rob.  Prac.  644,  5. 

The  commonwealth  of  Virginia  to  the  judge  of  the  &c.  greet- 
ing :  Because,  in  the  record  and  proceedings,  and  also  in  the 
rendering  of  the  judgment,  in  a  certain  action  of  debt  instituted 
in  our  said  court  by  W.  G.  administrator  of  J.  G.  deceased, 
against  J.  W.  (which  said  record  and  proceedings  before  you 
now  remain,  as  it  is  said,)  manifest  error  hath  happened,  to  the 
great  damage  of  the  said  J.  W.  as  by  his  complaint  we  have 
understood  ;  we,  being  willing  that  the  error,  if  any  hath  been, 
should  be  duly  corrected,  and  full  and  speedy  justice  done  to 
the  parties  aforesaid  in  this  behalf,  command  you,  that  if  judg- 
ment be  given  in  the  action  aforesaid,  then,  the  record  and  pro- 
ceedings aforesaid  being  inspected,  you  farther  cause  to  be  done 
therein,  to  correct  that  error,  what  of  right  and  according  to  law 
ought  to  be  done.     Witness  J.  R.  clerk  &c. 

*  In  the  court  of  king's  bench  in  England,  this  writ  is  called  a  writ 
of  error  coram  nobis,  from  the  words  quce  coram  nobis  resident.  In  the 
court  of  common  pleas,  it  is  called  a  writ  of  error  coram  vobis,  or  qua; 
coram  vobis  resident ;  and  this  is  the  name  by  which  it  is  known  in  Vir- 
ginia. 

11.  Scire  facias  ad  audiendum  errores.     1  Rob.  Prac.  644,  5. 

The  commonwealth  of  Virginia  to  the  sheriff  of  H.  county- 
greeting :  Whereas,  on  the  petition  of  J.  W.  alleging  that  in  the 
record  and  proceedings,  and  also  in  the  rendition  of  the  judg- 
m'ent,  in  a  certain  action  of  debt  instituted  in  our  &c.  by  W.  G. 
administrator  of  J.  G.  deceased,  against  J.  W.,  manifest  error 
hath  happened,  to  the  great  damage  of  the  said  petitioner,  a  writ 
of  error  hath  been  awarded  by  our  same  court,  that  the  record 
and  proceedings  aforesaid  being  inspected,  it  may  cause  to  be 
done  therein,  to  correct  that  error,  what  of  right  and  according 
to  law  ought  to  be  done  :  Therefore  we  command  you  that  you 
make  known  to  the  said  W.  G.  that  he  be  before  the  judge  of 
our  said  court,  at  &c.  on  &c.  then  and  there  to  hear  the  record 
and  proceedings  aforesaid,  if  to  him  it  shall  seem  expedient; 
and  further  to  do  and  receive  what  our  said  court  shall  in  this 
part  consider.     And  have  then  &c. 

This  form,  and  the  writ  of  error  preceding  it,  were  taken  from  Lilly's 
Entries.     In  the  case  in  which  they  were  used,  the  writ  of  error  was 
awarded  without  requiring  bond  and  security,  and  the  writ  had  no  effect 
as  a  supersedeas.     When  it  is  desired  to  have  the  effect  of  a  supersedeas 
let  the  command  be  as  follows : 


Correction  of  errors  in  same  court.  339 

Therefore  we  command  you  that  from  all  further  proceedings 
on  the  judgment  aforesaid  you  altogether  supersede,  and  that 
you  make  known  to  &c. 

If  the  writ  of  error  be  awarded  in  vacation,  then,  instead  of  the  words 
by  our  same  court,  say,  in  vacation,  hy  the  judge  of  our  said  court ;  and 
in  lieu  of  the  word  it,  say,  the  said  court. 

12.  Error  in  fact  confessed ;  judgment  reversed ;  "proceedings  subse- 
quent to  declaration  set  aside;  and  cause  sent  to  rules.  1  Rob. 
Prac.  644,  5. 

This  day  came  as  well  the  plaintiff  N.  W.  by  J.  W.  his  next 
friend,  as  the  plaintiff  J.  W.  and  the  defendant,  by  their  attor- 
neys, and  thereupon  the  said  defendant  admits  the  fact,  by  the 
plaintiffs  in  their  petition  alleged,  that  at  the  time  of  the  rendi- 
tion of  the  said  judgment,  the  plaintiff  N.  was  an  infant  under 
the  age  of  21  years,  and  acknowledges  that  there  is  error  in  the 
record  and  proceedings  aforesaid,  and  also  in  the  rendition  of 
the  judgment  aforesaid  :  Therefore  it  is  considered  by  the  court 
that  the  judgment  aforesaid  be  reversed  and  annulled,  and  that 
the  plaintiffs  recover  against  the  defendant  their  costs  by  them 
expended  in  suing  forth  and  prosecuting  this  writ ;  to  be  levied 
&c.  And  this  court  proceeding  further  to  correct  the  error  in 
the  record  and  proceedings  in  the  said  action,  it  is  ordered,  that 
the  common  order,  and  the  confirmation  thereof,  in  the  said  ac- 
tion entered,  be  set  aside  ;  and  that  the  same  be  placed  on  the 
rule  docket  of  this  court,  for  other  proceedings  to  be  had  there- 
in. And  on  the  motion  of  W.  G.  administrator  as  aforesaid,  J. 
W.  is  assigned  guardian  to  the  said  infant  N.  W.  to  defend  him 
in  the  said  suit. 

13.  Writ  of  error  coram  vobis  awarded,  because  plaintiff  was  dead 
when  suit  was  brought ;  and  the  fact  being  admitted,  judgment  re- 
versed and  writ  quashed.     1  Rob.  Prac.  644,  5. 

On  the  petition  of  G.  M.  G.  a  writ  of  error  coram  vobis  is  awar- 
ded him  to  a  judgment  rendered  against  him  in  this  court,  the 
9th  day  of  April  1821,  in  favour  of  M.  A.  Whereupon  came 
as  well  the  said  G.  M.  G.  by  his  attorney,  as  A.  P.  U.  attor- 
ney for  the  representative  of  the  said  M.  A.  (who  is  now  dead) 
and  the  said  U.  admitted  the  facts  set  forth  in  the  plaintifPs  pe- 
tition, and  agreed  that  the  court  should  proceed  to  judgment 
thereupon,  in  the  same  manner  as  if  the  said  representative 
were  regularly  before  the  court  upon  return  of  a  writ  of  scire 
facias  against  him  ;  and  it  appearing  to  the  court,  by  the  said 


340  Correction  of  errors  in  same  court. 

petition,  that  the  said  M.  A.  was  dead  before  the  original  writ 
in  the  said  cause  was  issued,  it  is  considered  that  the  judgment 
aforesaid  be  reversed  and  annulled,  and  that  the  original  writ 
aforesaid,  and  all  proceedings  had  thereupon,  be  quashed. 


Writ  of  mandamus.  341 


CHAPTER  XXXII. 

WRIT    OF    MANDAMUS. 


1.  Rule  to  shew  cause  why  mandamus  should  not  issue.  1  Rob.  Prac. 
25.  649.     Sess.  Acts  1836-7,  p.  37.  ch.  57. 

On  the  motion  of  R.  G.  by  W.  M.  his  attorney,  supported  by 
an  affidavit  of  the  said  W.  M.  filed,  it  is  ordered  that  J.  B.  trea- 
surer of  the  commonwealth  of  Virginia,  after  being  previously 
served  with  a  copy  of  this  order,  do  appear  here  on  the  13th  day 
of  the  present  term,  and  shew  cause,  if  any  he  can,  wherefore 
the  commonwealth's  writ  of  mandamus  should  not  be  awarded 
the  said  jR.  G.  to  command  the  said  treasurer,  in  conformity 
with  an  act  of  the  general  assembly  for  calling  in  and  register- 
ing certificates  of  the  public  debt  of  this  state,  passed  January 
2Sth  1802,  to  receive  of  the  said  R.  G.  a  certain  certificate  of 
debt  due  from  the  said  commonwealth,  in  the  following  words : 
(here  insert  it)  and  grant  a  receipt  therefor,  according  to  the  pro- 
visions of  the  said  act. 

Note.  In  the  case  of  Dinwiddie  Justices  v.  Chesterfield  Justices,  5 
Call  556.  without  any  previous  rule  to  shew  cause,  the  district  court 
awarded  a  writ  of  mandamus  nisi,  to  which  the  court  of  Dinwiddie  made 
a  return  by  attorney,  and  then  a  peremptory  mandamus  was  awarded. 
The  court  of  appeals  held  that  as  there  was  no  rule  to  shew  cause,  the 
mandamus  issued  improvidently,  and  for  this  reason  reversed  the  judg- 
ment and  quashed  the  writ.  This  objection  was  considered  open  to  the 
Dinwiddie  justices,  because  they  had  not  appeared  to  the  conditional 
mandamus,  nor  made  a  return  thereon.  Judge  Tucker  said,  "  The  re- 
turn to  a  mandamus  must  be  made  by  the  person  or  persons  to  whom  the 
writ  is  directed.  But  in  this  case  it  is  made  by  the  attorney,  and  not  by 
the  justices,  or  by  the  court  under  their  county  seal,  certified  by  the 
clerk  of  the  county :  one  or  other  of  which  modes  (I  am  not  prepared 
to  say  which)  appears  to  me  to  be  more  proper  than  that  which  has  been 
adopted.  For  I  presume  it  will  not  be  contended  that  they  could  be 
made  liable  in  an  action  for  a  false  return  not  made  by  themselves,  but 
by  the  attorney ;  which  of  itself  satisfies  me  of  the  insufficiency  of  the 
return." 


342  Writ  of  mandamus. 

2.  Rule  made  absolute,  arid  conditional  mandamus  awarded,  to  do 
the  specijic  thing,  or  shciv  cause  to  the  contrary.  1  Rob.  Prac.  649. 

On  the  motion  of  R.  G.  against  J.  B.  treasurer  of  the  com- 
monwealth of  Virginia,  for  a  writ  of  mandamus  commanding  the 
said  treasurer  to  receive  a  certain  certificate  and  grant  a  receipt 
therefor — This  day  came  as  well  the  plaintiff  by  his  attorney, 
as  the  attorney  general  for  the  commonwealth,  who  being  fully 
heard,  it  is  considered  by  the  court  that  the  said  rule  be  made 
absolute,  and  that  a  mandamus  be  awarded  returnable  here 
at  the  next  term,  commanding  the  said  J.  B.  treasurer  as  afore- 
said, to  receive  the  said  certificate,  and  grant  the  plaintiff  a  re- 
ceipt therefor,  specifying  the  amount  of  such  certificate,  and 
distinguishing  the  principal  from  the  interest  thereof,  according 
to  law ;  or  else  that  the  said  J.  B.  shew  cause,  at  the  next  court, 
why  he  has  not  done  so. 

3.  Mandamus  to  a  public  officer,  to  obey  a  statute,  or  shew  cause  to 

the  contrary. 

In  the  case  of  Amos  Kendall,  postmaster  general  of  the  United  States 
V.  The  United  States,  on  the  relation  of  Stokes  and  others,  reported  in 
12  Peters  524.  the  mandamus  nisi,  after  stating  the  proceedings  which 
had  taken  place  in  the  case,  proceeded  as  follows : 

Therefore  you  are  hereby  commanded  and  enjoined,  that  im- 
mediately after  the  receipt  of  this  writ,  and  without  delay,  you 
do  fully  comply  with,  obey  and  execute,  on  your  part,  the  afore- 
said act  of  congress  of  2d  July  1836,  by  crediting  said  mail 
contractors  with  the  full  and  entire  sum  so  awarded  and  deci- 
ded as  aforesaid  to  be  due  to  them,  by  the  solicitor  of  the  trea- 
sury, according  to  the  true  intent  and  meaning  of  the  said  award 
and  decision,  so  that  complaint  be  not  again  made  to  the  said 
circuit  court;  and  that  you  certify  perfect  obedience  to  and  due 
execution  of  this  writ,  to  the  said  circuit  court,  on  Saturday  the 
tenth  day  of  June  instant :  or  that  you  do,  at  ten  o'clock  of  that 
day,  shew  cause  to  the  said  court  why  you  have  not  so  done  as 
commanded. 

4.  Mandamus  to  justices  of  a  county  court,  to  admit  a  deed  to  record, 
or  shew  cause  to  the  contrary.  1  Rob.  Prac.  646,  7.  Manns  v. 
Givens  ^c.  7  Leigh  689. 

The  following  is  a  copy  of  the  mandamus  in  Dmoson  v.  Thruston  and 
others,  justices  of  Frederick,  2  Hen.  &,  Munf.  132, 

The  commonwealth  of  Virginia  to  the  justices  of  F.  county 
court,  greeting :  Whereas  B.  D.  trustee  for  R.  C.  deceased,  did, 


Writ  of  mandamus.  343 

at  a  court  held  by  you  for  the  said  county  of  F.  at  the  court- 
house of  said  county,  on  the  third  day  of  April  1805,  offer  to 
acknowledge  a  deed  of  emancipation  from  him  the  said  B.  D. 
trustee  for  R.  C.  deceased,  to  the  following  persons,  to  wit,  S. 
N.  &c.  (naming  them)  and  then  and  there  did  desire  that  you 
the  said  justices,  then  sitting  and  holding  a  court  for  the  said 
county  of  1^.  would  admit  the  said  deed  to  record,  and  also  that 
you  would  certify  on  your  record  that  as  many  of  the  said  per- 
sons as  appeared  to  your  judgments  to  be  so,  were  of  sound 
mind  and  body,  the  males  above  the  age  of  21  years  and  un- 
der 45,  and  the  females  above  the  age  of  18  years  and  under 
45  :  nevertheless  you  the  said  justices  (to  whom  it  doth  of  right 
belong  to  admit  such  deed  to  record,  and  to  make  such  certifi- 
cate upon  your  record)  have  refused  to  admit  the  said  deed  to 
record,  and  also  to  certify  on  your  record  as  aforesaid,  to  the 
great  damage  and  grievance  of  him  the  said  B.  D.  as  by  the 
complaint  of  the  said  B.  D.  we  have  understood  :  We  therefore, 
being  willing  that  due  and  speedy  justice  be  done  to  the  said  B. 
D.  in  this  behalf,  as  is  reasonable,  command  you  that  you  do 
admit  the  said  deed  of  emancipation  to  record,  and  that  you  do 
certify  on  your  record  that  as  many  of  the  said  persons  as  ap- 
pear to  your  judgments  to  be  so,  are  of  sound  mind  and  body, 
the  males  above  the  age  of  21  years  and  under  45,  and  the  fe- 
males above  the  age  of  18  years  and  under  45  ;  or  signify  to  us 
cause  to  the  contrary  thereof;  lest,  in  your  default,  complaint 
should  come  to  us  repeated.  And  how  you  shall  execute  this 
our  command,  certify  to  our  judges  of  our  general  court  at  the 
next  district  court  to  be  holden  at  Winchester,  returning  there 
this  our  writ.     Witness  &c. 

5.  Mandamus,  in  New  York,  to  judges  of  court  below,  to  seal  bill  of 
exceptions,  or  shew  why  it  is  not  done. 

In  Slices  V.  Ranson,  6  Johns.  Rep.  279.  the  supreme  court  of  New 
York  considered  the  question  whether  that  court  could  interfere  when  a 
court  below  refuses  to  seal  a  bill  of  exceptions.  The  following  is  an 
extract  from  the  court's  opinion  : 

"  The  practice  in  England  under  the  statute  of  Westm.  2,  (of  which 
ours  is  a  copy)  seems  to  be  to  apply  to  the  court  of  chancery  for  a  writ 
grounded  upon  the  statute.  The  form  of  the  writ  is  to  be  found  in  the 
Register  (182  a.) ;  and  lord  Redesdale,  in  the  case  of  Lessee  of  Latolor 
V.  Murray,  1  Sch.  &.  Lef.  75.  calls  it  a  mandatory  writ,  *  a  sort  of  pre- 
rogative writ ;'  that  the  judges  to  whom  it  is  directed  must  obey  the  writ 
by  sealing  the  exceptions,  or  make  a  special  return  to  the  king  in  chan- 
cery. The  writ,  after  reciting  the  complaint,  commands  the  judges,  si 
ita  est,  tunc  sigilla  vestra  ^c.  et  hoc,  sub  periculo  quod  incumhit,  nulla- 
tenus  omittatis.  What  that  peril  is,  within  the  purview  of  the  writ,  does 


344  fVrit  of  mandamus. 

not  distinctly  appear ;  though  the  books  speak  of  an  action  on  the  sta- 
tute, at  the  instance  of  the  party  aggrieved.  Show.  P.  C.  117.  In  The 
Rioters'  case,  1  Vern.  175.  a  precedent  was  produced,  where,  in  a  like 
case,  such  a  mandatory  writ  had  issued  out  of  chancery  to  the  judge  of 
the  sheriff'^  court  in  London.  But  though  no  instance  appears  of  such 
a  writ  issuing  out  of  the  king's  bench  when  an  inferior  court  refused  to 
seal  a  bill  of  exceptions,  there  is  no  case  denying  to  that  court  the  power 
to  award  the  writ.  It  is,  in  effect,  a  writ  of  mandamus,  and  it  is  so 
termed  in  the  books." 

Though  the  supreme  court  of  Neic  York  was  of  opinion,  in  Sikes  v. 
Ranson,  that  it  had  jurisdiction  to  award  the  writ  of  mandatnus,  yet  in 
that  case  the  writ  was  denied,  because  the  state  of  the  case  made  it  im- 
proper that  it  should  be  awarded.  The  bill  of  exceptions  had  been 
sealed  at  the  term  at  which  it  was  tendered,  and  at  a  subsequent  term  the 
court  below  was  asked  to  amend  the  bill,  according  to  a  statement  then 
presented.     This  the  court  below  was  not  bound  to  do. 

In  The  People  v.  Judges  of  Westchester,  4  Cow.  73.  a  mandamus  was 
issued  in  these  words  : 

The  people  &c.  to  the  judges  &c.  of  Westchester,  greeting : 
Whereas  it  has  lately  been  represented  to  us,  in  our  supreme 
court  of  judicature,  before  our  justices  thereof,  on  the  part  and 
behalf  of  J.  K.  that  at  a  court  of  connmon  pleas  held  in  and  for 
the  county  of  W.  at  &c.  on  &c.  a  certain  suit,  then  and  there 
pending  in  the  said  court  of  comoion  pleas,  before  you  the  said 
judges,  wherein  J.  K.  was  appellee  and  S.  K.  appellant,  was  ar- 
gued before  you  the  said  judges,  and  a  judgment  of  nonsuit  ren- 
dered therein  by  you  the  said  judges,  and  that  the  said  J.  K.  by 
his  counsel  learned  in  the  law,  did  then  and  there  except  to  the 
opinion  of  you  the  said  judges  in  the  said  suit,  and  to  the  judg- 
ment therein  by  you  so  rendered  as  aforesaid,,  and  did  then  and 
there  write  his  exceptions,  and  tender  the  same  to  you,  and  re- 
quest you  to  affix  your  seals  to  the  same ;  to  which  said  excep- 
tions you  the  said  judges  refused  to  affix  your  seals  :  Where- 
upon we,  being  willing  that  justice  should  be  done  in  the  pre- 
mises, do  command  you  that  you  the  said  judges  do  affix  your 
seals  to  the  said  bill  of  exceptions,  according  to  the  statute  in 
such  case  made  and  provided  ;  or,  in  default  thereof,  that  you 
make  known  to  us,  in  our  supreme  court  of  judicature,  before 
our  said  justices  thereof,  at  the  capitol  in  the  city  of  Albany,  on 
the  3d  monday  of  February  next,  why  you  have  not  done  the 
same.     Witness  &c. 

A  motion  was  made  to  quash  this  writ,  on  the  ground  that  it  was  de- 
fective in  form,  in  omitting  to  set  forth  or  recite  the  bill  of  exceptions. 
But  the  motion  was  denied. 


Writ  of  mandamus.  .    345 

6.  Mandamus  issued,  in  Virginia,  to  justices  of  county  court,  to  affix 
their  seals  to  bill  of  exceptions  alleged  to  contain  the  truth,  si  ita 
est. 

The  commonwealth  of  Virginia  to  A.  B.  Sec.  gentlemen,  jus- 
tices of  our  court  of  H.  county,  greeting :  Whereas  complaint 
hath  been  made  by  W.  B.  to  our  circuit  superior  court  of  law 
and  chancery  for  H.  county,  that  upon  the  trial  of  a  certain  ac- 
tion of  debt  lately  depending  in  the  said  county  court,  wherein 
the  said  W.  B.  was  plaintiff'  and  E.  C.  administrator  of  G.  M. 
deceased  was  defendant,  he  the  said  W.  B.  did  then  and  there 
offer  to  you  the  said  justices,  then  sitting,  his  certain  bill  of  ex- 
ceptions) in  the  words  and  figures  following :  (here  insert  the  ex- 
ceptions, and  did  then  and  there  require  you  the  said  justices  to 
affix  your  seals  to  the  said  bill  of  exceptions,  according  to  the 
statute  in  that  case  made  and  provided  ;  and  that  you  the  said 
justices  did  utterly  refuse  so  to  do,  notwithstanding  the  said  bill 
did,  as  is  alleged,  contain  a  true  statement  of  the  testimony  ex- 
cepted to,  and  by  you  the  said  justices  permitted  to  go  to  the 
jury  :  Therefore  we  command  you,  or  the  greater  part  of  you, 
if  it  is  so,  to  affix  your  seals  to  the  said  bill,  according  to  the 
form  of  the  statute  in  that  case  made  and  provided.  And  how 
you  shall  have  executed  this  our  command,  certify  to  our  judge 
of  our  said  circuit  superior  court,  at  &c.  on  the  first  day  of  the 
next  term,  returning  then  and  there  this  our  writ.  And  this  by 
no  means  omit.     Witness  &c. 

7.  Service  of  mandamus,  and  return  thereof. 

In  The  People,  at  the  relation  of  Tremper,  v.  Judges  S^c.  of  Ulster, 
1  Johns.  Rep.  64.  an  alternative  mandamus  had  issued  at  the  preceding 
term,  and  no  return  being  made,  an  affidavit  was  read,  stating  that  it  had 
been  served  by  delivering  a  copy  thereof  to  each  of  the  defendants  and 
at  the  same  time  shewing  the  original ;  and  a  motion  was  thereupon 
made  that  a  peremptory  mandamus  should  issue.  The  objection  was 
taken,  that  a  peremptory  mandamus  could  not  issue  until  a  return  was 
made  to  the  first  writ,  and  that  there  should  be  a  rule  for  a  return  to  the 
first  mandamus ;  as  in  other  cases  where  a  writ  is  not  returned.  But  the 
court  said,  "  It  is  not  requisite  that  we  should  go  through  the  process 
and  delay  of  rules  and  attachments  in  order  to  compel  a  return  to  the 
first  mandamus.  The  alternative  in  it  was  intended  for  the  benefit  and 
convenience  of  the  defendants.  As  the  first  writ  has  been  regularly 
served,  we  may,  at  our  discretion,  order  a  peremptory  mandamus." 
44 


346  Writ  of  mandamus. 

8.  Return  being  insuficient,  peremptory  mandamus  awarded.  1  Rob. 
Prac.  649,  50.     Dawson  v.  Thruslon  ^c.  2  Hen.  &  Munf.  132. 

Return  being  made  to  the  conditional  mandamus  awarded  at 
the  last  term,  on  the  motion  of  B.  D.  trustee  for  R.  C.  deceased, 
directed  to  the  justices  of  F.  county  court;  this  day  came  the 
parlies  by  their  attorneys,  who  were  fully  heard,  and  the  return 
aforesaid  being  seen  and  inspected,  it  seems  to  the  court  that  the 
said  return  is  insufficient.  Therefore  it  is  considered  that  a  pe- 
remptory writ  of  mandamus  be  awarded,  directed  to  the  justices 
of  the  county  court  of  F.  commanding  them  to  receive  proof  or 
acknowledgment  of  the  deed  of  emancipation  in  the  proceed- 
ings mentioned,  and  admit  the  same  to  record,  and  to  certify  on 
their  record  that  as  many  of  the  persons  named  in  the  said  deed 
as  then  appeared  to  their  judgments  to  be  so,  were  of  sound 
mind  and  body  on  the  3d  day  of  April  1805  (when  they  were 
before  the  court  of  the  said  count}^  and  the  said  B.  D.  offered 
to  acknowledge  the  said  deed),  the  males  then  above  the  age  of 
twenty-one  years  and  under  forty-five,  and  the  females  then 
above  the  age  of  eighteen  years  and  under  forty-five. 


Writ  of  prohibition.  347 


CHAPTER  XXXIII. 


WRIT    OF    PROHIBITION. 


1.  Notice  to  justice  of  the  peace,  of  motion  for  writ  of  prohibition. 
1  Rob.  Prac.  27.  650,  51.  Sess.  Acts  1836-7,  p.  37.  ch.  57. 
Slate  V.  Whyte  ^c.  2  Nolt  &  M'C.  174.  State  ads  Wakely,  Id. 
410.  412.  419.     Free  v.  Burgoyne,  2  Bligh  N.  S.  65. 

To  J.  S.  W.  esq. 
Sir, 

Take  notice,  that  on  the day  of  the  ensuing  ses- 
sion of  the  &c.  I  shall,  by  counsel,  move  the  said  court  to  award 
a  writ  of  prohibition,  inhibiting  you  from  proceeding  to  try  and 
give  judgnnent  on  a  certain  warrant  issued  by  you,  as  a  justice 
of  the  peace  for  the  county  of  F.  against  me,  at  the  suit  of  J. 
M.  M.  for  certain  rents  claimed  by  him  to  be  due  from  me  for  a 
certain  lot  in  the  town  of  Winchester. 

Winchester,  May  6.  1808.  J.  M. 

Affidavit  of  service. 

F.  county,  to  wit : 

C.  W.  this  day  made  oath  before  me,  a  justice  of  the  peace 
for  said  county,  that  on  the  14th  day  of  this  month  he  delivered 
a  true  copy  of  the  above  notice  to  J.  S.  W.  esq.  Given  under 
my  hand  this  16th  day  of  May  1808.  E.  M. 

2.  Notice  to  opposite  party,  of  motion  for  writ  of  prohibition. 

To  J.  M.  M. 

Sir, 

Take  notice,  that  on  the day  of  the  ensuing 

session  of  the  &c.  I  shall  move  the  said  court  to  grant  me  a 
writ  of  prohibition  against  yourself  and  J.  S.  W.  esq.  justice  of 
the  peace  for  F.  county,  to  prevent  your  further  proceeding  be- 
fore the  said  justice  of  the  peace,  and  to  inhibit  him  from  further 
acting,  on  a  certain  claim  exhibited  before  him  by  you  against 
me,  and  from  trying  a  warrant  issued  against  me  for  certain 


348  Writ  of  prohibition. 

rents  claimed  by  you  to  be  due  from  me  for  a  lot  in  the  town 
of  Winchester.  J'  M. 

Winchester,  May  6.  1808. 

Affidavit  of  service  will  be  like  that  upon  the  notice  to  the  justice.     , 

3.  Suggestion  that  controversy  before  a  justice  involves  the  title  of  an 
assignee  to  a  freehold  estate  of  inheritance  in  an  iticorjporeal  here- 
ditament.    1  Rob.  Prac.  3.  4.  650.  651. 

The  following  is  a  copy  of  the  suggestion  in  Miller  v.  Marshall  Sfc. 
1  Va.  Cas.  158. 

Virg-inia,  district  of  Winchester,  to  wit :  Be  it  remembered  that 

on  the day  of  October  1807,  at  a  superior  court  contmued 

and  held  for  the  district  composed  of  the  counties  of  Frederick^ 
Berlceleijt  Shenandoah  and  Jefferson,  at  Winchester,  before  the 
honourable  A.  S.  esq.  one  of  the  judges  of  the  general  court 
of  Virginia,  then  and  there  sitting,  and  holding  a  court  for 
the  said  district,  comes  J.  M.  by  his  counsel,  and  gives  the 
said  court  to  understand  and  be  informed,  that  whereas  all  and 
all  manner  of  pleas  and  plaints  involving  the  title  or  bounds  of 
lands,  or  the  right  or  title  to  any  freehold  estates,  within  the  said 
commonwealth  of  Virginia  and  within  the  district  aforesaid 
arising  and  happening,  to  certain  courts  of  record  within  the 
said  district,  that  is  to  say,  to  the  courts  of  quarterly  sessions  of 
the  counties  and  corporations  within  the  said  district,  respec- 
tively, and  to  the  court  held  according  to  law  for  the  district 
aforesaid,  do  belong  and  appertain :  And  whereas,  by  the  de- 
claration of  rights,  made  by  the  representatives  of  the  good 
people  of  Virginia  assembled  in  full  and  free  convention,  at  the 
capitol  in  the  city  of  Williamsburg,  on  monday  the  6th  day  of 
May  1776,  it  is  declared  and  established,  that  in  controversies 
respecting  property,  and  suits  between  man  and  man,  the  an- 
cient trial  by  jury  is  preferable  to  any  other,  and  ought  to  be 
held  sacred  :  And  whereas  also  an  action  of  debt,  account,  or 
assumpsit  will  not  lie  for  the  recovery  of  a  fee  rent,  or  any  fee 
simple  estate  or  interest  in  an  incorporeal  hereditament :  Ne- 
vertheless a  certain  J.  M.  M,  esq.  not  ignorant  of  the  premises, 
but  contriving  him  the  said  J.  M.  wrongfully  to  aggrieve  and 
oppress,  and  from  the  rights  and  jurisdiction  of  the  courts  of  the 
said  commonwealth  to  derogate,  and  the  cognizance  of  pleas 
■which  to  the  said  courts  of  record,  and  among  others  to  the  said 
district  court,  and  not  to  the  justices  of  peace  out  of  court,  be- 
longs, to  another  examination,  before  a  justice  of  the  peace  out 
of  court,  to  draw,  before  one  J.  S.  W.  esq.  one  of  the  common- 


Wric  of  prohibition.  349 

wealth's  justices  of  the  peace  in  and  for  the  county  of  2^.  in  the 
said  district,  and  within  the  jurisdiction  of  this  court,  against 
the  due  form  of  law,  and  contrary  to  the  laws,  customs  and 
usages  of  the  land,  for  a  certain  supposed  right  by  the  said  J. 
M.  M.  claimed  to  a  certain  freehold  estate  of  inheritance  in  an 
incorporeal  hereditament,  that  is  to  say,  a  certain  yearly  rent 
claimed  to  be  issuing  out  of  the  lancfs  and  tenements  of  the  said 
J.  M.  and  payable  to  the  said  J.  M.  M.  as  assignee  of  D.  F. 
(formerly  D.  M.)  who  was  assignee  of  Thomas  the  late  lord 
Fairfax,  hath  unjustly  drawn  the  said  J.  M.  in  a  plea  to  answer 
to  a  certain  account,  before  the  said  J.  S.  W.  by  the  said  J. 
M.  M.  exhibited  and  stated,  he  the  said  J.  M.  M.  before  the 
said  J.  S.  W.  esq.  craftily  and  subtly  stating  his  demand,  in  sub- 
stance, as  follows : 

"  J.  M.  ioJ.M.M.  -  -  -  -    Dr. 

To  one  year's  rent  on  lot  designated  by  the  let- 
ter C  in  the  town  of  Winchester,  due  on  the  29th 
of  September  1797,  at  5s.  sterling  per  annum, 
Do.  due  29th  September  1798,  - 
Do.  due  29th  September  1799,  - 
Do.  due  29th  September  1800,  - 
Do.  due  29th  September  1801,  - 
Do.  due  29th  September  1802,  - 
Do.  due  29th  September  1803,  - 
Do.  due  29th  September  1804, 
Do.  due  29th  September  1805,      - 


which  said  rent  is  reserved,  by  a  deed  under  seal,  conveying 

the  said  lot  designated  by  the  letter  C  to ,  signed  by  the 

late  lord  Fair/ax,  and  dated ,  now  in  the  custody  of  the 

said  J.  M.,  to  him  the  said  Thomas  late  lord  Fairfax,  his  heirs 
and  assigns  for  ever,  and  which  said  rent  the  said  J.  M.  M.  by 
divers  good  and  sufficient  conveyances  in  the  law,  has  now  a 
right  to  demand  and  have,  but  the  payment  of  which  he  the 
said  J.  M.  refuses  to  make.  Wherefore  he  the  said  J.  M.  M. 
prays  judgment  against  him  for  the  same,  with  interest  and 
costs  ;  and  shall  ever  pray  &c." 

Whereupon  a  warrant  and  summons  issued,  signed  by  the 
said  J.  S.  W.  esq.  in  substance  as  follows: 
**  F.  county,  set. 

*'  Summon  J.  M.  to  appear  before  me  or  some  other  justice  of 
the  peace  for  the  said  county,  at  Chappellier^s  tavern,  near  the 
While  Post,  on  the  20th  day  of  this  month,  to  answer  the  com- 
plaint of  J.  M.  M.  for  rent  due,  as  appears  by  the  annexed  ac- 


p . 

6.  8. 

6.  8. 

6.  8. 

6.  8. 

6.  8. 

6.  8. 

6.  8. 

6.  8. 

6.  8. 

^3. 

0.  0. 

350  Writ  of  prohibition. 

count,  amounting  to  ten  dollars  with  interest.  And  have  then 
there  this  warrant.  Given  under  my  hand  this  9th  day  of  June 
1807.  J.  S.  W. 

"  To  any  sworn  constable  of  district  No.  2.  to  execute  and 
return." 

Which  said  warrant  hath  been  executed  and  returned,  and 
is  now  depending  before  the  said  /.  S.  W.  and  undeter- 
mined. 

And  the  said  J.  M.  saith  that  the  rent  reserved  to  the  said 
lord  Fairfax  and  his  heirs  and  assigns,  by  the  deed  aforesaid 
under  which  the  said  J.  M.  M.  claims  the  rent  aforesaid,  was  a 
freehold  estate  of  inheritance  in  an  incorporeal  hereditament,  in 
the  said  lord  Fairfax,  and  that  the  said  J.  M.  M.  claims  the  said 
rent  as  issuing  out  of  the  said  lot,  and  payable  to  him  and  his 
heirs  and  assigns  for  ever.  And  the  said  J.  M.  further  saith 
that  the  said  demand,  claimed  and  demanded  by  the  said  J.  M. 
M.  of  him  the  said  J.  M.  by  warrant  before  the  said  J.  S.  W. 
and  the  amount  stated  and  claimed  by  him  as  aforesaid,  is  the 
same  with  the  aforesaid  rent,  and  not  other  or  different  there- 
from. And  the  said  J.  M.  M.  him  the  said  J.  M.  before  the  said 
J.  S.  W.  as  a  justice  of  the  peace  aforesaid,  of  and  upon  the 
premises  to  appear,  hath  wrongfully  obliged,  and  the  said  J. 
M.  thereupon  there  to  answer,  and  in  the  premises  cause  to 
be  condemned,  with  all  his  power  and  endeavours  daily  con- 
trives, in  contempt  of  the  authority  of  the  courts  of  record  of 
the  said  commonwealth,  against  the  laws  and  customs  of  the 
commonwealth,  and  to  the  manifest  prejudice,  damage  and 
grievance  of  him  the  said  J.  M.  And  this  he  is  ready  to  verify ; 
with  this,  that  the  said  place  called  Chappellier' s  tavern,  near  the 
White  Fast,  is  within  the  said  county  of  F.  in  the  said  district, 
and  within  the  jurisdiction  of  this  court,  and  that  the  said  J.  M. 
M.  and  J.  S.  W.  are  both  of  the  said  county  of  F.  in  the  said 
district,  and  within  the  jurisdiction  of  this  court,  and  the  said 
lot  of  ground  out  of  which  the  said  rent  is  claimed  to  issue,  and 
the  said  J.  M.  and  all  the  persons  and  things  concerned  in  the 
said  matter  of  controversy,  are  within  the  said  county  of  F.  in 
the  said  district,  and  within  the  jurisdiction  of  this  court,  and 
subject  to  its  rules  and  process.  Wherefore  the  said  J.  M.  the 
aid  of  this  court  respectfully  demanding,  prays  remedy  by  the 
commonwealth's  writ  of  prohibition,  to  the  said  J.  S.  W.  justice 
of  the  peace  as  aforesaid,  or  other  justice,  in  form  of  law  to  be 
directed,  to  prohibit  him  and  them  from  holding  the  plea  afore- 
said, of  and  concerning  the  premises  aforesaid,  farther  before 
him  or  them,  or  any  of  them.     And  it  is  granted  him  &c. 


Writ  of  prohibition.  361 

Affidavit  verifying  the  facts. 

F.  county,  set. 

J.  M.  this  day  personally  appeared  before  me  the  subscriber, 
a  justice  of  the  peace  in  and  for  the  county  of  F.  and  made 
oath  that  the  matters  of  fact  slated  in  the  above  and  foregoing 
suggestion  are  true,  to  the  best  of  his  knowledge  and  belief. 
Given  under  my  hand  this  25th  day  of  September  1807. 

E.  M. 

4.  Suggestion  that  proceedings  before  a  justice  were  by  four  warrants 
for  sums  constituting  together  but  one  debt,  and  that  the  debt  ex- 
ceeded $20.     1  Rob.  Prac.  4.  650,  51. 

The  following  is  a  copy  of  the  suggestion  in  Hutson  v.  Lowry  and 
Neville,  2  Va.  Cas.  42. 

In  &c. 

Be  it  remembered  that  on  the day  of  in  the 

year  of  our  lord  1816,  comes  J.  H.  and  gives  the  said  court  to 
understand  and  be  informed,  that  all  and  all  manner  of  pleas 
and  plaints  of  debt  exceeding  the  value  of  20  dollars,  and  with- 
in the  county  aforesaid  arising  and  happening,  to  certain  courts 
of  record  within  the  said  county,  that  is  to  say,  to  the  court  of 
quarterly  sessions  of  the  county  aforesaid,  and  to  the  superior 
court  of  law  for  the  county  aforesaid,  do  belong  and  appertain. 
And  whereas  the  said  J.  H.  on  the  11th  day  of  September  in 
the  year  of  our  lord  1815,  was  indebted  to  one  J.  L.  in  the  sum 
of  $  80.  of  lawful  money  of  the  United  States,  and  the  said  J. 
H.  so  being  indebted  as  aforesaid,  afterwards,  to  wit,  on  the 
same  day  and  year  last  aforesaid,  by  the  procurement  of  the 
said  J.  L.  who  sought  to  oust  the  aforesaid  courts  of  their  afore- 
said jurisdictions,  at  the  county  aforesaid,  made  and  delivered 
to  the  said  J.  L.  four  several  single  bills,  sealed  with  the  seal  of 
the  said  J.  H.  whereby  the  said  J.  H.  bound  himself  for  the 
payment  of  the  said  $80.  to  the  said  J.  L.  that  is  to  say,  the 
said  J.  H.  by  each  and  every  of  said  single  bills,  bound  himself 
to  pay  to  the  said  J.  L.  20  dollars ;  all  which  debt,  and  all  of 
the  said  several  single  bills,  were  due  and  had  become  payable 
at  or  before  the  12ih  day  of  December  in  the  year  of  our  lord 
1815,  whereby  the  courts  aforesaid,  or  one  of  them,  had  and 
ought  to  have  had  jurisdiction  touching  any  plea  or  action  for 
the  recovery  or  decision  of  the  said  debt  and  single  bills  afore- 
said. Nevertheless  the  said  /.  L.  not  ignorant  of  the  premises, 
but  contriving  him  the  said  J.  H.  wrongfully  to  aggrieve  and  op- 
press, and  from  the  rights  and  jurisdiction  of  the  courts  of  this 


352  Writ  of  'prohibition. 

commonwealth  to  derogate,  and  the  cognizance  of  pleas  which 
to  the  said  courts  of  record,  and  not  to  justices  of  the  peace, 
out  of  such  court,  belongs,  to  another  examination  before  a  jus- 
tice of  the  peace,  out  of  a  court  of  record,  to  draw,  against  the 
due  form  of  law,  and  contrary  to  the  laws,  customs  and  usages 
of  the  land,  hath  unjustly  drawn  the  said  J.  H.  in  four  several 
pleas,  by  colour  of  four  several  warrants,  issued  the  day  and 
year  last  aforesaid,  for  the  recovering  of  the  said  debt  of  80  dol- 
lars, (the  whole  thereof  being  then  and  there  payable  and  due 
to  the  said  J.  L.  and  the  whole  being  in  arrear  and  unpaid,)  be- 
fore J.  S.  a  single  justice  of  the  peace  for  said  county,  he  the 
said  J.  L.  before  the  said  /.  S.  craftily  and  subtly  stating  his 
demands  to  be  four  debts  of  20  dollars  each,  due  in  manner  and 
form  aforesaid  :  and  such  proceedings  were  thereupon  had  by 
the  procurement  of  the  said  J.  L.  and  one  J.  N.  a  constable  of 
the  said  county,  that  the  said  J.  S.  afterwards,  to  wit,  on  the 
16th  day  of  December  1815,  at  the  county  aforesaid,  rendered 
in  behalf  of  the  said  J.  L.  against  the  said  J.  H.  against  the 
will  and  consent  of  the  said  J.  H.  four  several  judgments  for 
the  sum  of  20  dollars  each,  and  interest  and  costs,  making  alto- 
gether 80  dollars,  and  interest  and  costs,  by  pretence  of  the  said 
several  warrants,  and  the  debt  and  single  bills  aforesaid.  And 
the  said  /.  L.  and  J.  N.  by  pretence  of  the  said  several  judg- 
ments, to  condemn  the  said  J.  H.  in  the  payment  of  large 
sums  of  money,  and  to  prosecute  execution  thereon  against  him, 
with  all  their  power  and  endeavours,  daily  contrive ;  in  con- 
tempt of  the  authority  of  the  courts  of  record  of  the  said  com- 
monwealth, and  to  the  manifest  prejudice,  damage  and  grievance 
of  him  the  said  J.  H.  And  this  he  is  ready  to.  verify.  Where- 
fore the  said  J.  H.  the  aid  of  this  court  most  respectfully  de- 
manding, prays  remedy  by  the  commonwealth's  writ  of  prohi- 
bition, to  the  said  /.  S.  justice  of  the  peace,  and  the  said  J.  N. 
and  J.  L.  as  aforesaid,  to  be  directed,  in  form  of  law,  to  prohi- 
bit him  the  said  justice  from  holding  the  plea  aforesaid,  of  and 
concerning  the  premises  aforesaid,  farther  before  him,  and  to 
prohibit  the  said  J.  L.  and  J.  N.  from  proceeding  in  the  pre- 
mises. 

Note.  If  there  be  one  entire  contract  above  $  20.  and  a  man  severs 
it  into  divers  small  sums  under  $  20.  and  proceeds  before  a  justice  for 
the  separate  sums,  a  prohibition  will  be  granted,  because  this  is  consi- 
dered as  done  to  defraud  the  proper  court.  It  has  also  been  contended 
that  if  there  be  several  contracts  between  A.  and  B.  at  several  times, 
for  several  sums,  each  under  $  20.  and  together  they  amount  to  more 
than  $  20.  they  must  be  put  in  suit.  But  the  decision  of  the  court  of 
king's  bench  in  The  King  v.  The  sheriff  of  Herefordshire,  1  Barn.  & 


Writ  of  prohibition.  353 

Ad.  672.  20  Eng.  Com.  Law  Rep.  466.  is  against  this  proposition.  It 
appeared  in  that  case,  that  the  plaintiff,  who  was  a  carrier,  had  conveyed 
goods  for  the  defendant,  and  the  carriage  amounted  to  <£  1.  4.  In  about 
a  month  afterwards,  he  carried  more  goods  for  the  defendant,  and  the 
carriage  upon  that  occasion  also  amounted  to  ^1.  4.  And  for  these 
sums,  respectively,  he  commenced  two  suits  in  the  county  court.  A 
motion  was  made  for  a  rule  upon  the  sheriff,  to  shew  cause  why  a  writ 
should  not  issue  to  prohibit  him  from  proceeding  in  the  two  suits  in  his 
county  court.  And  it  was  urged  before  the  court  of  king's  bench,  that 
these  two  items  must  be  considered  as  constituting  but  one  entire  debt 
or  demand,  and  if  so  considered,  then  that  the  plaintiff  had  no  right  to 
split  that  demand,  in  order  to  bring  several  suits  for  different  portions  of 
it  in  the  county  court.  The  court,  however,  refused  the  rule.  Lord 
Tenterden,  C.  J.  said,  "  I  am  of  opinion  that  this  case  does  not  come 
within  the  rule  of  law  which  prohibits  the  splitting  of  a  cause  of  action 
into  several  portions,  for  the  purpose  of  commencing  suits  for  each  in 
an  inferior  court ;  to  be  so,  the  cause  of  action  must  be  one  and  entire. 
But  in  this  case  the  two  items  of  <£  L  4.  each  are  perfectly  distinct 
debts,  the  one  having  no  connexion  with  the  other.  When  the  defen- 
dant incurred  the  debt  stated  in  the  first  item,  the  plaintiff  might  have 
sued  him  for  it  in  the  county  court ;  and  his  having  incurred  another 
and  distinct  debt  with  the  plaintiff  afterwards,  should  not,  I  think,  have 
the  effect  of  depriving  the  plaintiff  of  his  remedy  in  the  county  court 
for  the  first  debt.  And  if  he  may  still  have  that  remedy  for  the  first 
debt,  he  has  it  of  course  for  the  second  also." 

5.  Suggestion  that  county  court  is  illegally  exe^'cising  jurisdiction  by 
jprohibition.     1  Rob.  Prac.  650,  51. 

In  &c.  Be  it  remembered  that  C.  G.  I.  in  his  proper  person 
comes  here  into  court,  and  gives  the  court  now  here  to  under- 
stand and  be  informed,  that  heretofore,  to  wit,  on  the  25th  day 
of  September  1824,  at  the  county  of  L.  aforesaid,  before  one 
J.  B.  one  of  the  commonwealth's  justices  of  the  peace  for  said 
county,  he  the  said  C.  G.  I.  by  warrant  in  a  plea  of  debt  then 
and  there  returned  and  prosecuted  before  the  said  justice  of  the 
peace,  and  by  the  consideration  and  judgment  of  the  said  jus- 
tice of  the  peace,  recovered  against  one  L.  M.  of  the  same 
county,  10  dollars  for  debt,  and  1  dollar  and  50  cents  interest, 
with  4  dollars  and  88  cents  for  the  costs  of  him  the  said  C.  G.  I. 
about  the  prosecution  of  the  said  warrant  expended.  And  the 
said  C.  G.  I.  further  gives  the  court  to  understand  and  be  in- 
formed, that  afterwards  and  heretofore,  to  wit,  on  the  15lh  day 
of  December  1824,  at  the  said  county,  before  the  county  court 
of  the  said  county,  the  said  L.  M.  contriving  and  wrongfully 
intending  to  draw  him  the  said  C.  G.  I.  and  the  judgment 
and  matter  of  controversy  aforesaid,  into  question  before  the 
said  county  court,  did  then  and  there,  before  the  justices  of  the 
45 


354  Writ  of  prohibition. 

said  county,  exhibit  a  certain  petition  to  the  said  county  court, 
complaining  of  certain  supposed  errors  in  the  aforesaid  judg- 
ment, and  praying  the  said  county  court  to  grant  him  the  said 
L.  M.  a  writ  of  prohibition,  to  prohibit  the  said  /.  D.  and  all 
other  officers  from  proceeding  further  in  the  said  judgment;  and 
such  proceedings  on  such  petition  were  had,  that  afterwards,  to 
wit,  on  the  day  and  year  last  aforesaid,  at  L.  county  aforesaid, 
the  said  county  court,  by  the  promotion  of  the  said  L.  M. 
awarded  such  writ  of  prohibition,  and  afterwards,  to  wit,  on  the 
15th  day  of  January  1825,  at  jL.  county  aforesaid,  the  said  county 
court,  by  the  promotion  of  the  said  L.  M.  ordered  that  the  said 
prohibition  should  stand  final  between  the  parlies.  And  the 
said  C.  G.  I.  further  gives  the  court  to  understand  and  be  in- 
formed, that  the  said  county  court  of  L.  have  proceeded  as  afore- 
said by  the  promotion  of  the  said  L.  M.  unlawfully  and  without 
jurisdiction,  and  against  the  will  of  him  the  said  C.  G.  I.  and 
that  the  said  L.  M.  and  the  same  county  court  have  hitherto 
wrongfully  continued,  and  yet  do  wrongfully  continue,  to  enforce 
the  said  order  so  made  as  aforesaid  on  the  said  15th  day  of 
January  1825,  thereby  wrongfully  usurping  the  lawful  jurisdic- 
tion of  awarding  a  prohibition,  which  lawfully  appertains  only 
to  this  honourable  court,  and  thereby  wrongfully,  injuriously, 
and  unlawfully  restraining  and  inhibiting  him  the  said  C.  G.  I. 
from  having  execution  of  his  said  judgment,  and  from  all  pro- 
ceedings thereon.  Wherefore  the  said  C.  G.  I.  now  here  prays 
that  the  commonwealth's  writ  may  be  awarded,  to  prohibit  the 
said  county  court  and  the  said  L.  M.  from  prosecuting  and  en- 
forcing the  said  order  of  said  county  court. 

6.   Writ  of  prohibition. 

The  commonwealth  of  Virginia  to  E.  F.  a  justice  of  the  peace 
for  the  county  of  L. — Whereas,  when  any  debt  or  penalty,  ex- 
clusive of  interest,  shall  exceed  twenty  dollars,  the  same  is  not 
cognizable  and  determinable  by  any  one  justice  of  the  peace 
in  this  commonwealth,  but  of  causes  whose  value  exceeds 
twenty  dollars,  our  county  and  corporation  courts  may  take  cog- 
nizance, and  hear  and  determine  the  same,  and  of  causes,  mat- 
ters and  things  at  common  law,  which  amount  to  fifty  dollars, 
our  circuit  superior  courts  of  law  and  chancery  have  jurisdic- 
tion likewise  :  And  whereas  you  the  said  justice  have,  as  we  are 
informed,  given  judgment  for  A.  B.  against  C.  D.  for  a  debt  of 
$  80.  besides  interest  and  costs,  that  is  to  say,  upon  four  war- 
rants, each  for  $20,  have  given  judgment  in  each  case  for  $20, 
besides  interest  and  costs  :  We  therefore  command  you,  if  it 
be  so,  that  then  you  absolutely  supersede  the  said  plea  or  pleas 


Writ  of  prohibition.  355 

of  the  said  A.  B.  from  being  farther  holden  before  you,  and  also 
supersede  further  proceedings  on  the  judgment  or  judgments 
given  as  aforesaid  ;  and  on  our  behalf  that  you  tell  the  aforesaid 
A.  B.  that  he  may,  upon  request,  obtain  our  writ  of  the  debt 
aforesaid  against  the  aforesaid  C.  D.  in  the  court  of  our  said 
county,  or  in  the  circuit  superior  court  of  law  and  chancery  for 
our  said  county,  if  it  shall  seem  to  him  expedient.     Witness  &c. 


356  Writ  of  habeas  corpus  ad  snhjiciendum. 

CHAPTER  XXXIV. 

WKIT    OF    HABEAS    CORPUS    AD    SUBJICIENDUM. 


1.  Petition  for  imit.  1  Rob  Prac.  22.  651,  2.  U.  States  v.  Ha- 
milton,  3  Dal.  17.  Ex  parte  Buford,  3  Cranch  448.  Ex  parte 
Wilson,  6  Cranch  52.  Ex  parte  Kearney,  7  Wheat.  38.  De 
Lacy  V.  Antoijie  &c.  7  Leigh  438. 

To  the  honourable  W.  B.  judge  of  the  circuit  superior  court 
of  law  and  chancery  for  the  county  of  H. 

The  petition  of  J.  H.  P.  of  the  city  of  R.  respectfully  repre- 
sents, that  he  has  been  arrested  by  the  marshal  of  the  eastern 
district  of  Virginia,  namely,  E.  C,  and  that  he  is  now  detained 
in  his  custody,  under  and  by  virtue  of  an  alleged  order  or  pro- 
cess of  attachment,  which  purports  to  have  been  issued  by  the 
court  therein  styled  the  United  States  circuit  court  of  the  district 
of  Columbia  for  the  county  of  Alexandria,  for  an  alleged  disobe- 
dience of  your  petitioner  to  a  prior  order  of  said  court,  to  ap- 
pear as  a  witness  before  the  said  court  to  give  evidence  touch- 
ing alleged  matters  of  public  complaint  therein  depending. 
Your  petitioner  represents  that  he  is  a  citizen  and  resident,  and 
always  has  been,  of  the  commonwealth  of  Virginia,  and,  as 
such,  is  not  subject  to  be  ordered  and  controlled  by  the  process 
of  the  said  court,  in  respect  of  the  matters  alleged  against  him ; 
and  further,  that  there  is  no  law  which  authorizes  the  court  afore- 
said to  issue  the  said  process,  and  that  the  marshal  aforesaid 
has  no  authority  to  arrest  your  petitioner  thereon.  Therefore 
your  petitioner  prays  your  honour  to  award  to  him  the  writ  of 
habeas  corpus,  to  the  said  marshal  directed,  requiring  him  to 
bring  before  you  the  body  of  your  petitioner,  with  the  causes  of 
his  detention,  so  that  the  same  may  be  enquired  into,  and  relief 
afforded  your  petitioner. 

J.  H,  P. 

Affidavit. 

In  open  court,  November  14.  1833,  the  above  named  J.  H.  Pi 
made  oath  that  he  is  now  detained  in  the  custody  of  the  marshal 
of  the  eastern  district  of  Virginia,  as  within  stated. 

/.  R.  clerk. 


Writ  of  habeas  cmyus  ad  mhjiciendum.  357 

2.  Order  awarding  the  writ.     1  Rob.  Prac.  651,  2. 

On  the  petition  of  J.  H.  P.  stating  that  he  is  illegally  detained 
in  the  custody  of  the  marshal  of  the  eastern  district  of  Virginia, 
by  virtue  of  an  attachment  issued  out  of  the  United  States  cir- 
cuit court  for  the  district  of  Columbia,  a  writ  of  habeas  corpus  is 
awarded  him,  to  the  said  marshal  to  be  directed,  commanding 
him  to  have  the  body  of  the  petitioner  before  this  court  to-mor- 
row morning  at  10  o'clock,  together  with  the  day  and  cause  of 
his  caption  and  detention. 

3.  Writ  of  habeas  corpus.     1  Rob.  Prac.  651,  2. 

The  commonwealth  of  Virginia  to  the  marshal  of  the  eastern 
district  of  Virginia  greeting :  We  command  you  that  the  body 
of  J.  H.  P.  detained  by  you,  and  under  your  custody,  as  it  is 
said,  together  with  the  day  and  cause  of  his  caption  and  deten- 
tion, by  whatsoever  name  he  may  be  called,  you  have  to-mor- 
row morning  at  10  o'clock  before  the  judge  of  our  circuit  supe- 
rior court  of  law  and  chancery  for  H.  county,  now  sitting,  at 
the  capitol  in  the  city  of  it.  to  do,  submit  to,  and  receive  all 
and  singular  those  things,  which  shall  then  and  there  be  consi- 
dered of  him  in  this  behalf.  And  have  then  there  this  writ.  Wit- 
ness J.  R.  clerk  of  our  said  circuit  superior  court,  at  Richmond 
the  14th  day  of  November  1833,  in  the  58th  year  of  our  foun- 
dation. 

J.  R. 

4.  Return  annexed  to  writ.     1  Rob.  Prac.  651,  2. 

In  obedience  to  the  within  writ  of  habeas  corpus,  to  me  direct- 
ed, I  hereby  certify  to  the  circuit  superior  court  of  law  and 
chancery  of  the  county  of  H.  that  the  said  J.  H.  P.  in  the  said 
writ  named,  was  by  me  taken  on  the  14th  inst.  and  is  detained 
in  custody  by  me,  under  authority  of  a  certain  process,  called 
an  alias  attachment,  issued  from  the  circuit  court  of  the  district 
of  Columbia,  for  the  county  of  Alexandria,  dated  the  12th  day  of 
October  1833,  and  to  me  directed,  whereby  I  am  commanded 
to  attach  the  body  of  the  said  J.  H.  P.  and  to  have  him  before 
the  said  circuit  court  of  the  district  of  Columbia,  for  the  county 
of  Alexandria,  immediately,  to  answer  the  United  States  of  Ame- 
rica, touching  a  certain  "contempt  by  him  committed,  in  not  at- 
tending the  said  court  as  a  witness,  after  being  thereto  legally 
summoned ;  of  which  said  process  of  attachment,  I  hereto  annex 
a  full  copy.     And  I  now  have  the  body  of  the  said  J.  H.  P.  be- 


358  Writ  of  habeas  corpm  ad  subjiciendum. 

fore  this  court,  as  by  the  said  writ  of  habeas  corpus  I  am  com- 
manded. 

E.  C.  United  States  marshal 

of  the  eastern  district  of  Virginia, 
November  15.  1833. 

5.  Endorsement  upon  writ.     1  Rob.  Prac.  651,  2. 

The  execution  of  this  writ  and  return  thereupon,  appears  by 
the  schedule  hereto  annexed. 

E.  C.  United  States  marshal 

of  the  eastern  district  of  Virginia. 
November  15.  1833. 

6.  Return  made  to  ivrit,  and  case  continued  to  another  day. 
1  Rob.  Prac.  651,  2. 

E.  C.  marshal  of  the  eastern  district  of  Virginia,  in  obedi- 
ence to  the  writ  of  Jiabeas  corptis  yesterday  awarded,  and  to  him 
directed,  brought  into  court  J.  H.  P.  in  the  said  writ  named, 
and  certified  that  the  cause  of  the  detention  of  the  said  P. 
would  appear  by  a  schedule  annexed  to  the  said  writ:  which 
being  inspected,  for  reasons  appearing  to  the  court,  the  further  con- 
sideration of  the  petition  of  the  said  P.  is  postponed  till  to-mor- 
row morning,  10  o'clock.  And  it  is  ordered  that  he  be  conti- 
nued in  the  custody  of  the  said  marshal,  until  the  further  order 
of  the  court. 

7.   Ca^e  heard,  and  petitioner  discharged  from  custody.     1  Rob. 

Prac.  651,  2. 

J.  H.  P.  was  this  day  again  brought  into  court  by  E.  C.  mar- 
shal of  the  eastern  district  of  Virginia :  and  the  court,  after 
hearing  and  considering  the  arguments  of  counsel,  as  well  in 
behalf  of  the  said  J.  H.  P.  upon  his  petition,  as  in  opposition 
thereto,  is  of  opinion  that  the  said  P.  is  illegally  detained  in  the 
custody  of  the  said  marshal.  It  is  therefore  ordered  that  he  be 
discharged  therefrom. 

8.  Entry  of  return  made  to  writ ;  case  heard;  and  prisoner  dis- 
charged.    1  Rob.  Prac.  651,  2. 

This  day,  J.  L.  was  brought  into  court  by  the  sheriff  of  this 
county,  in  obedience  to  the  writ  of  habeas  corpus  yesterday 
awarded,  and  to  the  said  sheriff  directed  ;  and  the  said  sheriff 
certified  that  the  said  L.  was  taken  into  his  custody  and  de- 


Writ  of  habeas  cmj^tis  ad  sulyicimdum.  359 

tained  by  virtue  of  a  writ  of  capias  ad  satisfaciendum,  issued 
from  the  clerk's  office  of  this  court  on  the  30th  day  of  October 
last,  in  favour  of  D.  P.  and  for  no  other  cause :  And  it  appear- 
ing to  the  court,  that  the  judgment  on  which  the  said  execution 
issued  was  rendered  on  the  21st  day  of  December  1819;  that 
the  said  L.  took  the  oath  of  an  insolvent  debtor  before  the 
county  court  of  H.  on  the  7th  day  of  May  1821,  and  that  since 
that  time  no  execution  has  been  ordered  by  this  court  to  issue 
upon  the  judgment  aforesaid  ;  it  seems  to  the  court  that  the  said 
J,  L.  is  illegally  detained  in  custody,  and  it  is  therefore  ordered 
that  he  be  discharged. 

Another. 

S.  T.  a  captain  in  the  army  of  the  United  States,  in  obedience 
lo  the  writ  of  habeas  corpis  yesterday  awarded,  and  to  him  di- 
rected, brought  into  court  R.  S.  in  the  said  writ  named,  who  is 
detained  in  his  custody  as  a  captain  in  the  army  of  the  United- 
States,  under  an  enlistment  to  serve  in  the  army  of  the  said 
United  States.  Whereupon  came,  as  well  W.  TV.  who  claims 
the  said  S.  as  his  apprentice,  as  the  said  S.  T.  by  their  attor- 
neys ;  and  it  appearing  to  the  court  that  the  said  R.  S.  hath 
been  legally  bound  to  the  said  TV.  TV.  for  a  term  of  years  which 
is  not  yet  expired,  it  is  ordered  that  he  be  discharged  from  the 
custody  of  the  said  S.  T. 


360  Writs  of  error  and  supersedeas. 


CHAPTER  XXXV. 

WRITS    OF    ERROR   AND    SUPERSEDEAS. 


1.  Where  party  desires  to  appeal^  order  directing  execution  to  be 

s^ispended.     1  Rob.  Prac.  659. 

The  defendant  stating  that  he  thinks  himself  aggrieved  by 
the  judgment  rendered  in  this  case,  at  the  present  terra,  and 
that  he  desires  to  appeal  therefrom  to  the  circuit  court  of  this 
county,  and  intends  to  apply  for  an  appeal  pursuant  to  the  pro- 
visions of  the  judicial  act,  passed  April  16.  1S31,  the  court  doth 
fix  sixty  days  as  the  time  within  which  the  said  C.  D.  may  ap- 
ply for  such  appeal,  and  doth  order  that  execution  of  the  said 
judgment  be  suspended  for  that  time,  provided  the  said  defen- 
dant or  some  responsible  person  shall  enter  into  bond  with  suffi- 
cient security,  in  the  penalty  of  $ ,  with  a  condition  ac- 
cording to  law.  Whereupon  the  said  C.  D.  entered  into  such 
bond  with  E.  F.  his  security ;  and  execution  of  the  judgment  is 
suspended  as  aforesaid. 

2.  Bond  given  when  the  court  suspends  execution  to  let  the  party 

apply  for  an  appeal.     1  Rob.  Prac.  659. 

Know  all  men  &c.  (as  in  p.  152.  No.  3.)  The  condition  of 
the  above  obligation  is  such,  that  whereas  the  above  bound  C. 
jD.  thinks  himself  aggrieved  by  a  judgment  of  the  court  of  H. 

county,  rendered  on  the day  of ,  in  favour  of 

A.  B.  against  the  said  C.  D.  for  &c.  (stating  the  judgment) ; 
and  the  said  C.  D.  desiring  to  appeal  therefrom  to  the  circuit 
court  of  this  county,  and  intending  to  apply  for  an  appeal  pur- 
suant to  the  provisions  of  the  judicial  act,  passed  April  16. 
1831,  the  said  county  court,  on  this  day,  has  fixed  sixty  days 
as  the  time  within  which  the  said  C.  D.  may  apply  for  such  ap- 
peal, and  has  ordered  that  execution  of  the  said  judgment  be 
suspended  for  that  time,  provided  the  said  C.  D.  or  some  re- 
sponsible person  shall  enter  into  bond  with  sufficient  security,  in 

the  penalty  of  $ ,  with  a  condition  according  to  law : 

Now  if  the  said  C.  D.  his  heirs,  executors  or  administrators, 
shall  pay  to  the  said  E.  F.  his  executors,  administrators  or  as- 
signs, all  costs  and  damages  and  the  profits  of  the  property  reco- 


Writs  of  error  and  supersedeas.  361 

vered,  in  case  the  said  judgment  be  affirmed,  or  the  said  C.  D. 
shall  fail  to  obtain  or  prosecute  an  appeal,  then  the  above  obli- 
gation is  to  be  void,  otherwise  it  is  to  remain  in  full  force. 

3.  Manner  of  transcribing  the  record. 

Judging  from  the  records  which  are  every  day  brought  to  counsel, 
practising  in  the  court  of  appeals,  there  must  be  a  great  diminution  of 
clerical  knowledge  throughout  the  commonwealth.  It  is  difficult  to  ac- 
count for  that  want  of  skill  in  making  up  a  record,  which  is  so  often 
manifested,  except  by  supposing  that  persons  are  frequently  appointed  to 
fill  clerkships,  who  have  not  undergone  the  previous  training  indispen- 
sable to  make  a  clerk. 

At  common  law,  when  there  is  a  verdict,  no  written  evidence  is  con- 
sidered as  forming  a  part  of  the  record,  unless  mentioned  in  the  plead- 
ings with  a  profert  in  curia,  or  made  a  part  of  the  record  by  praying 
oyer  thereof  and  setting  it  forth  in  hccc  verba,  or  specially  found  in  a 
special  verdict,  or  set  forth  in  hcec  verba,  by  a  bill  of  exceptions  or  de- 
murrer to  evidence.  In  the  latter  cases  it  is  usual,  in  order  to  save 
time,  only  to  insert  at  the  trial  a  few  of  the  initial  words,  by  way  of 
identifying  the  papers,  and  then  the  clerk  copies  them  at  length,  either 
in  the  body  of  the  verdict  or  bill  of  exceptions,  or  certifies  them  as  the 
papers  referred  to  by  the  initial  words.  Tucker,  J.  in  Carr's  ex'or  v.  An- 
derson, 2  Hen.  &,  Munf  36o. 

The  copying,  at  the  end  of  a  record,  a  mass  of  documents  which 
have  not  been  made  part  of  the  record  in  any  regular  mode,  brings  in- 
creased charges  upon  parties,  and  adds  to  the  labour  of  counsel  and 
judges  in  the  appellate  court,  without  producing  the  slightest  advan- 
tage. 

In  Moore  v.  Chapman,  3  Hen.  &  Munf  267.  judge  Tucker  says :  "  I 
have  taken  no  notice  of  the  evidence  which  might  have  been  given  to 
the  jury,  except  what  is  stated  in  the  bill  of  exceptions ;  the  mass  of  pa- 
pers copied  at  the  end  of  the  record,  as  has  been  more  than  once  deci- 
ded, though  certified  by  the  clerk  to  have  been  filed  in  the  cause,  not 
being  properly  before  this  court." 

Again,  in  the  more  recent  case  of  Bowyer  v.  Chesnut,  4  Leigh  4. 
two  depositions  were  copied,  and  the  clerk  certified  that  these  deposi- 
tions were  read  in  evidence  for  the  plaintiff  at  the  trial.  Upon  this  oc- 
casion. Tucker,  president,  said,  the  depositions  "  are  no  part  of  the  re- 
cord. The  clerk's  certificate  that  they  were  read  and  filed  cannot  be 
received  as  evidence  of  that  fact ;  for  the  appellate  court  can  never 
know  what  took  place  at  the  trial  from  the  clerk's  certificate.  That  is 
not  within  his  province.  The  evidence  produced  upon  the  trial  can 
only  be  known  by  its  being  spread  upon  the  record,  by  bill  of  excep- 
tions, or  by  the  certificate  of  the  judge  himself  The  very  object  of 
the  institution  of  bills  of  exceptions  was  to  enable  a  party  to  spread 
upon  the  record  the  matters  that  occurred  at  the  trial ;  the  improper 
evidence  introduced,  the  instructions  asked,  the  opinions  given,  and 
other  matters  of  which,  the  party  could  not  otherwise  avail  himself  in 
an  appellate  court.  Unless  this  is  done,  the  court  sees  nothing  but  the 
process,  the  pleadings,  the  verdict  and  the  judgment.  The  certificate 
46 


362  Writs  of  error  and  supersedeas. 

of  counsel  affords  no  evidence  of  opinions  expressed  or  evidence  given ; 
nor  the  certificate  of  the  clerk,  of  the  papers  produced  before  the  jury, 
or  the  depositions  read  in  the  cause." 

Endorse  upon  the  record — The  fee  of  the  clerk  of  the  court  of 
county,  for  making  out  this  transcript  of  the  record,  is 


L,  N,  E.  clerk. 

As  to  the  necessity  of  this  endorsement,  see  1  Rob.  Prac.  671, 2. 

4.    Transcript  of  the  record  in  a  case  wherein  final  judgment  has 
been  entered  in  the  oj^ce.     1  Rob.  Prac.  654. 

Pleas  at  the  courthouse  of  the  county  of ,  before  the 

court  of  the  said  county,  on  monday,  the  fourteenth  day  of 
November,  in  the  year  one  thousand  eight  hundred  and  twen- 
ty-five. 

Be  it  remembered,  that  heretofore,  to  wit,  on  the  first  day  of 
August  in  the  year  aforesaid,  came  G.  S,  by  his  attorney,  and 
sued  out  of  the  office  of  the  said  court  a  writ  of  capias  ad  re- 
spondendum against  G.  W.  B.  which  writ  with  the  endorsement 
and  return  thereon  made,  is  in  the  words  and  figures  following : 
*'  The  commonwealth"  &c.  (here  insert  the  writ). 

(Endorsement.)  "  This  is  an  action  of  debt  upon  a  note  in 
writing  for  the  payment  of  money.     No  bail  required. 

for  plaintiff." 

(Return.)  "Executed  on  the  second  day  of  August  1825. 
H.  L.  C.  deputy  f  jr  W.  D.  sheriflT  of  H.  county." 
And  at  another  day,  to  wit,  at  rules  held  in  the  clerk's  office 
of  the  said  court  on  the  first  monday  in  September  1825,  being 
the  fifth  day  of  the  month,  came  the  plaintiff  by  his  attorney, 
and  filed  his  declaration  against  the  defendant,  which  declara- 
tion is  in  these  words  :  (here  insert  the  declaration).  "Where- 
upon, the  defendant  being  arrested  and  not  appearing,  on  the 
motion  of  the  plaintiff  by  his  attorney,  it  was  ordered  that 
judgment  be  entered  for  &c.  (pursuing  the  form  of  the  condi- 
tional judgment)  unless  the  defendant  should  appear  and  plead 
to  issue  at  the  then  next  rules. 

At  which  day,  to  wit,  at  rules  held  in  the  office  of  the  said 
court  on  the  first  monday  in  October  1825,  being  the  third  day 
of  the  month,  the  defendant  still  failing  to  appear,  on  the  motion 
of  the  plaintiff  by  his  attorney,  it  was  ordered  that  &c.  (pursu- 
ing the.  form  of  the  conditional  judgment  confirmed). 

And  now  at  this  day,  to  wit,  at  a  court  held  for  the  said 
county  of  H,  at  the  courthouse,  on  the  same  day  and  year  first 


Writs  of  error  and  supersedeas.  363 

herein  mentioned,  to  wit,  on  monday  the  &c.  (state  the  final 
judgment.) 

The  following  is  a  copy  of  the  note  in  writing  upon  which 
this  action  was  ibunded  ;  (here  insert  the  note.) 

5.  T7anscri]jt  of  tJte  record  in  a  case  wherdn  damages  have  been 
assessed  and  judgment  rendered  upon  a  ivrit  of  enqnirij.     1  Rob. 

Prac.  654. 

Like  the  last  form,  omitting  merely  the  concluding  lines  which  intro- 
duce the  paper  whereon  the  action  is  founded.  After  verdict  upon  a 
writ  of  enquiry,  though  the  action  be  upon  a  bond  with  collateral  con- 
dition, the  bond  is  no  part  of  the  record. 

6.  Transcript  of  the  recoi'd  of  an  action  on  a  hond  made  part  of 

the  recoid  by  oyer.     1  Rob.  Prac.  655,  6. 

Pleas  &c. 

Be  it  remembered  that  heretofore,  to  wit,  at  rules  held  in  the 

clerk's  office  of  the  said  court  on  the  first  monday  in  , 

being  the  day  of  the  month,  came  E.   O.  and  R.  O.  by 

their  attorney,  and  filed  their  declaration  against  D.  R.  in  cus- 
tody &c.  of  a  plea  of  debt,  which  declaration  is  in  these  words, 
to  wit :  (here  insert  it). 

Whereupon  came  also  the  defendant  by  his  attorney,  and 
prayed  oya-  of  the  writing  obligatory  in  the  declaration  men- 
tioned, and  of  the  condition  of  the  said  writing  obligatory,  and 
the  same  were  read  to  him  in  these  words,  to  wit:  *'  Know  all 
men,"  &c.  (here  insert  them).  And  thereupon  a  day  was  given 
the  defendant  until  the  next  rules,  to  plead  to  the  plaintiff's  de- 
claration ;  and  the  same  day  was  given  to  the  plaintiffs  there  &c. 

At  which  day,  to  wit,  at  rules  held  in  the  clerk's  office  of  the 

said  court  on  the  first  monday  in  — — — ,  being  the day  of 

the  month,  came  the  plaintiff  by  his  attorney,  &c.  (stating  the 
proceedings  as  they  took  place). 

7.  Transcript  of  the  record  of  an  action  on  a  judgment,  wherein 
profert  icas  made  of  the  record  of  the  judgment,  and  no  sv£h  record 
pleaded.  1  Rob.  Prac.  655.  Digges^s  ex'or  v.  Dunnes  ex'or,  1 
Munf.  56. 

Pleas  &c. 

Be  it  remembered  that  heretofore,  to  wit,  at  rules  held  in  the 

office  of  the  said  court  on  the  first  monday  in ,  being  the 

day  of  the  month,  came  S.  P.  by  his  attorney,  and  filed 

his  declaration  against  M.  G.  of  a  plea  of ,  which  decla- 


364  Writs  of  error  and  supersedeas, 

ration  is  in  these  words  :  (here  insert  the  declaration).  Where- 
upon &c.  (pursuing  the  form  of  the  conditional  judgment). 

At  which  day,  to  wit,  at  rules  held  in  the  office  of  the  said 

court  on  the  first  monday  in ,  being  the day  of  the 

month,  (state  the  conditional  judgment  confirmed). 

And  at  another  day,  to  wit,  at  a  court  held  for  the  said  county 
on  the day  of ,  (state  the  plea  and  issue). 

And  now  at  this  day,  to  wit,  at  a  court  held  for  the  said  county 
of  H.  at  the  courthouse,  on  the  same  day  and  year  first  herein 

mentioned,  to  wit,  on the day  of  ,  (state  the 

final  judgment). 

The  transcript  of  the  record  of  the  judgment  in  the  declara- 
tion mentioned,  brought  by  the  plaintiff  into  court,  and  inspected 
by  the  court,  is  in  the  words  following  to  wit :  (liere  insert  the 
same). 

8.  Transcript  of  the  record  of  an  action  wherein  an  issue  of  fact  was 
joined,  opinion  at  the  trial  excepted  to,  and  judgmerit  rendered  upo7i 
a  verdict.     1  Rob.  Prac.  655,  6. 

Like  the  last  form,  omitting  merely  the  concluding  lines,  which  in- 
troduce the  transcript  of  the  record  in  that  case,  and,  in  lieu  thereof, 
copying,  at  the  foot  of  the  judgment,  the  entry  of  the  bill  of  excep- 
tions, thus : 

Memorandum.  At  the  trial  of  this  cause,  &c.  (see  p.  120.  No. 
18).  The  said  bill  of  exceptions  is  in  these  words,  to  wit :  (here 
insert  the  same). 

9.  Transcript  of  the  record  of  an  action  of  ejectment.     1  Rob.  Prac. 

441.  654-6. 

Pleas  &c. 

Be  it  remembered  that  heretofore,  to  wit,  at  a  circuit  superior 
court  of  law  and  chancery  held  for  the  county  of  H.  at  the 
courthouse,  on  &c.  came  Aminadab  Scelcright  by  his  attorney,  and 
filed  his  declaration  against  jP.  D.  of  a  plea  of  trespass  and 
ejectment;  which  declaration,  and  the  note  and  affidavit  there- 
under written  {or,  thereon  endorsed)  are  in  the  words  following: 
(here  insert  them).  And  it  appearing  by  the  affidavit  of  &c. 
(state  the  common  order). 

And  at  another  day,  to  wit,  at  Sec.  (stating  the  proceedings  as 
they  took  place). 


Writs  of  (yrror  and  supersedeas.  365 

10.   Ti'anscript  of  the  record  upon  a  wi'it  of  right.     1  Rob.  Prac. 

464.  654-6. 

Pleas  &c. 

Be  it  remembered  that  heretofore,  to  wit,  on  the  25th  day  of 
October  1S25,  was  issued  out  of  the  office  of  the  said  court  a 
writ  of  right,  which,  with  the  return  thereon,  is  in  these  words : 
(here  insert  the  writ  and  return). 

And  at  another  day,  to  wit,  at  a  circuit  superior  court  of  law 
and  chancery  held  for  the  county  of  H.  at  &c.  on  &c.  came  the 
adult  demandants  by  their  attorney,  and  the  infant  demandants 
by  their  next  friends,  and  filed  their  count  against  the  tenants ; 
which  count  is  in  these  words  :  (here  insert  the  count).  And  it 
appearing  by  the  return  &c.  (state  the  conditional  order,  and 
then  the  subsequent  proceedings  as  they  took  place). 

11.   Transcript  of  the  record  upon  a  complaint  for  unlawful 
detainer.     1  Rob.  Prac.  496.  654-6. 

Be  it  remembered  that  at  the  courthouse  of  the  county  of  H. 

on the day  of ,  A.  B.  and  C.  D.  gent,  justices 

of  the  said  county  attended,  and  constituted  a  court  for  the  trial 
of  a  complaint  of  E.  F.  against  6r.  H.  for  unlawfully  holding 
him  out  of  possession  of  a  certain  tenement  containing  &c.  lying 
&c.     Whereupon  &c.  (state  the  proceedings  that  took  place). 

The  complaint  of  the  plaintiff',  with  his  verification  of  the 
same,  and  the  warrant  issued  upon  the  said  complaint,  with  the 
return  thereon,  are  in  the  words  following,  to  wit :  (here  insert 
them). 

12.   Transcript  of  the  record  ^ipon  a  monstrans  de  droit.     1  Rob. 

Prac.  500. 

The  following  is  a  copy  of  the  record  in  French  S^  Brown  v.  The 
Commonwealth,  5  Leigh  512. 

Pleas  at  the  capitol  in  the  city  of  R.  before  the  superior  court  of 
law  for  H.  county,  held  for  the  trial  of  civil  causes,  on  tuesday 
the  tenth  day  of  April  in  the  year  one  thousand  eight  hun- 
dred and  twenty-seven. 

Be  it  remembered  that  heretofore,  ta  wit,  on  the  24th  day  of 
April  1826,  A.  F.  and  E.  B.  filed  in  the  clerk's  office  of  the  said 
superior  court,  in  the  vacation  thereof,  a  certain  monstrans  de  droit 
to  an  inquisition  taken  before  J.  R.  escheator  for  the  city  of  R. 
which  monstrans  is  in  the  words  and  figures  following,  to  wit : 


366  Writs  of  error  and  supersedeas. 

F.  and  B.  v.  Commonwealth.     Monstrans  de  droit. 

And  now  at  this  day,  to  wit,  the  24th  day  of  April  1826,  came 

A.  F.  and  E.  B.  by  A.  F.  their  attorney,  and  pray  oyer  of  the 
inquisition  taken  before  J.  R.  escheator  for  the  city  of  R.  on  the 
5th  day  of  April  1S25,  and  it  is  read  to  them  in  the  words  and 
figures  following,  to  wit : 

( Oyer  of  inquisition.) 
**  Inquisition  indented  and  taken  on  this  5th  day  of  April  1825, 
at  the  courthouse  in  the  city  of  R.  between  J.  R.  escheator  of 
the  commonwealth  of  Virginia  in  and  for  the  said  city,  of  the 
one  part,  and  R.  F.  Sec.  (here  the  jury  were  named)  good  and 
lawful  men  and  freeholders  of  the  said  city,  returned  and  im- 
pannelled  by  the  serjeant  of  the  said  city,  and  duly  sworn,  of 
the  other  part,  who  being  charged  to  enquire  what  lands  and 
tenements  M.  B.  and  P.  B.  late  of  the  said  city,  now  deceased, 
died  seized  of;  whether  they  left  any  heir,  or  made  any  dispo- 
sition of  such  lands  in  their  lifetime :  and  whether  the  said  M. 

B.  and  F.  B.  were  aliens  at  the  time  of  their  death,  upon  their 
oath  aforesaid  do  say,  that  the  said  M.  B.  and  F.  B.  long  before 
their  death,  were  seized  of  a  certain  lot,  piece  or  parcel  of 
ground,  lying  and  being,  at  the  time  of  their  deaths,  in  the  county 
of  H.  and  now  being  within  the  limits  of  the  city  of  R.  contain- 
ing one  half  of  an  acre,  conveyed  to  them  the  said  M.  and  F. 
by  deed  from  W.  C.  dated  the  first  day  of  September  1783,  and 
recorded  in  the  clerk's  office  of  the  county  court  of  H.  on  the 
6th  day  of  October  1783,  as  by  reference  to  the  said  deed  will 
more  fully  appear  ;  and  being  so  seized,  the  said  M.  B.  died 
sometime  in  the  year  1791,  and  the  said  F.  B.  died  sometime  in 
the  year  1793,  without  heirs.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  say,  that  the  said  M.  B.  and  F.  B. 
did  not  make  any  disposition  of  the  said  land  in  their  lifetime, 
to  their  knowledge." 

(Here  followed  the  signatures  and  seals  of  the  jurors,  and  the 
signature  and  seal  of  the  escheator.) 

{Monstrans  de  droit.) 

"  Which  being  read,  heard  and  understood,  they  complain, 
that  under  colour  of  the  premises  in  the  inquisition  aforesaid 
specified,  they  are  grievously  vexed  and  disquieted,  and  that  the 
said  tract  or  parcel  of  land,  with  the  appurtenances,  in  the 
hands  of  the  commonwealth  is  taken  and  seized,  and  that  not 
justly,  viz.  because,  protesting  that  the  inquisition  aforesaid,  and 
the  matters  therein  contained,  are  not  sufficient  in  law,  to  which 
they  have  no  necessity,  nor  are  they  bound  by  the  law  of  the 
land  in  any  manner  to  answer,  for  shewing  their  right  neverthe- 
less in  that  behalf,  the  said  J^.  and  B.  by  their  attorney  afore- 
said, say,  that  on  the  said  5th  day  of  April  1S25,  when  the  said 


Writs  of  error  and  sujpersedeas.  367 

inquisition  was  taken,  the  said  F.  and  B.  were  seized  and  pos- 
sessed of  the  said  tract  or  parcel  of  land,  with  its  appurte- 
nances, in  their  demesne  as  of  fee,  and  that  the  said  F.  and  B. 
and  those  under  whom  they  claim,  had  been  continually  so 
seized  and  possessed  for  more  than  thirty  years  next  before  the 
said  5th  day  of  April  1825,  and  next  before  the  commencement 
of  the  proceedings  in  which  said  inquisition  was  found,  and  had 
during  that  term  paid  to  the  commonwealth  of  Virginia  the  an- 
nual taxes  assessed  thereon,  to  wit,  the  sum  of for  each 

and  every  year  of  more  than  thirty  years  next  preceding  the 
said  5th  day  of  April  1825  and  the  commencement  of  the  pro- 
ceedings aforesaid.  And  so  the  said  F.  and  B.  say  that  the 
said  tract  or  parcel  of  land,  with  its  appurtenances,  was,  on  the 
said  5th  day  of  April  1825,  and  yet  is,  their  own  proper  freehold 
and  fee  ;  wherefrom,  by  the  inquisition  aforesaid,  they  have  been 
unjustly  removed.  And  this  they  are  ready  to  verify.  And  the 
said  F.  and  B.  further  say  that  the  title  of  the  commonwealth, 
found  by  the  inquisition  aforesaid,  accrued  more  than  thirty 
years  before  the  commencement  of  the  proceedings  in  which 

said  inquisition  was  found,  to  wit,  on  the day  of 

in  the  year  1793 ;  and  that,  for  more  than  thirty  years  next  be- 
fore the  commencement  of  said  proceedings,  the  said  tract  or 
parcel  of  land  had  been  settled,  and  continually,  for  the  said  pe- 
riod of  more  than  thirty  years,  had  been  held  and  claimed  as 
their  proper  freehold  and  fee,  by  the  said  F.  and  B.  and  by 
those  under  whom  they  claim,  and  was  so  held  and  claimed  by 
the  said  F.  and  B.  when  the  said  proceedings  were  commenced, 
and  continually  thereafter,  until  and  upon  the  said  5th  day  of 
April  1825;  and  that,  during  the  whole  of  the  said  term,  the 
said  F.  and  B.  and  those  under  whom  they  claim,  paid  to  the 
said  commonwealth  the  taxes  assessed  on  the  said  tract  or  par- 
cel of  land,  to  wit,  the  sum  of for  each  of  more  than 

thirty  years  next  before  the  commencement  of  said  proceedings  ; 
and  that,  in  consideration  of  the  said  settlement,  possession,  and 
payment  of  taxes,  and  by  virtue  of  the  act  of  assembly  in  that 
case  made  and  provided,  the  right  of  the  commonwealth  to  the 
said  tract  or  parcel  of  land,  with  its  appurtenances,  was  re- 
leased to  the  said  F.  and  B.  And  so  the  said  jP.  and  B.  say, 
that  on  the  said  5lh  day  of  April  1825,  when  the  said  inquisi- 
tion was  taken,  the  said  tract  or  parcel  of  land,  with  its  appur- 
tenances, was  their  proper  freehold  and  fee,  and  still  continues 
to  be  so.  And  this  they  are  ready  to  verify.  Wherefore  the 
said  F.  and  B.  pray  that  the  hands  of  the  commonwealth  from 
the  said  tract  or  parcel  of  land  with  its  appurtenances  may  be 
amoved,  and  that  they  the  said  F.  and  B.  to  their  possession 
thereof  may  be  restored." 


36S  Writs  of  error  and  supersedeas. 

And  at  another  day,  to  wit,  at  a  superior  court  of  law  for  H, 
county,  held  for  the  trial  of  civil  causes,  at  the  capitol  in  the 
city  of  R.  on  tuesday  the  seventh  day  of  November  in  the  year 
1826,  the  said  monstrans  dc  droit  was  produced  in  court.  Where- 
upon came  as  well  the  said  A.  F.  and  E.  B.  by  their  attorney, 
as  the  attorney  general  for  the  commonwealth,  and  the  said  at- 
torney general  tendered  a  demurrer  to  the  said  monstrans  de  droit, 
and  a  replication  to  the  first  plea  in  the  said  monstrans  de  droit 
contained. 

{Demurrer  and  replication  objected  to,  but  allowed.) 

To  the  reception  of  which  demurrer  and  plea  the  said  A.  F. 
and  E.  B.  objected,  upon  the  ground  that  though  the  said  attor- 
ney general  might  demur,  or  reply  to  the  said  monstrans  de  droit, 
yet  he  could  not  both  demur  and  reply  thereto.  But  the  court, 
being  of  opinion  that  the  said  A.  F.  and  E.  B.  are  plaintiffs  in 
this  case,  received  as  well  the  demurrer  as  the  replication  afore- 
said ;  and  the  same  being  filed,  the  said  A.  F.  and  E.  B.  filed 
their  joinder  in  the  demurrer,  and  a  similiter  to  the  said  replica- 
tion ;  which  demurrer  and  joinder,  replication  and  similiter  are 
as  follows : 

{Demurrer.) 

"  And  now  at  this  day,  to  wit,  on  the  7th  day  of  November 
in  the  year  1826,  J.  II.  the  now  attorney  general  of  the  com- 
monwealth, who  for  the  commonwealth  in  this  behalf  prosecutes 
and  defends,  now  here  present  in  court  in  his  proper  person,  by 
protestation  not  acknowledging  anything  in  the  pleas  of  the  said 
A.  and  E.  to  be  true  in  manner  and  form  as  they  in  their  said 
pleas  have  above  pleaded,  for  replication  nevertheless  for  the 
commonwealth  saith,  that  the  said  pleas  of  the  said  A.  and  E. 
and  the  matters  therein  contained,  are  not  sufficient  in  law. 
Wherefore,  on  account  of  the  insufficiency  of  the  said  pleas,  the 
said  attorney  general  of  the  commonwealth  prays  judgment  for 
the  commonwealth,  of  the  court  now  here,  and  that  the  said  tract 
or  parcel  of  land  with  the  appurtenances,  in  the  said  inquisition 
mentioned,  may  remain  in  the  hands  and  possession  of  the  com- 
monwealth." 

{Joinder  in  demurrer.) 

"  And  the  said  A.  and  E.  by  their  said  attorney  say,  that  for- 
asmuch as  they  have  above,  in  their  said  pleas,  alleged  suffi- 
cient matter  to  have  the  premises  aforesaid  out  of  the  hands  of 
the  commonwealth,  which  matter  they  are  ready  to  verify,  and 
which  the  said  attorney  general  of  the  commonwealth  hath  not 
now  for  the  commonwealth  gainsaid,  but  hath  altogether  refused 
to  admit  the  verification  thereof,  therefore  the  said  A.  and  E. 
now,  as  before,  pray  judgment  that  the  hands  of  the  common- 
wealth be  removed  from  the  said  tract  or  parcel  of  land  with 


Writs  of  error  and  supersedeas.  369 

the  appurtenances,  and  that  they  to  their  possession  of  the  same 
whh  the  appurtenances,  and  the  issues  and  profits  thereof  in  the 
mean  time  received,  may  be  restored." 

{Replication  and  similiter.) 

"  And  for  further  plea  in  this  behalf,  by  leave  of  the  court  for 
this  purpose  first  had  and  obtained,  according  to  the  statute  in 
such  case  made  and  provided,  the  said  attorney  general  of  the 
commonwealth,  who  for  the  commonwealth  in  this  behalf  pro- 
secutes and  defends,  for  replication  to  the  first  plea  by  the  said 
J^.  and  B.  above  pleaded,  saith,  that  on  the  5th  day  of  April 
1825,  when  the  said  inquisition  was  taken,  the  said  jP.  and  B. 
were  not  seized  and  possessed  of  the  said  parcel  of  land,  with 
its  appurtenances,  in  their  demesne  as  of  fee,  and  that  the  said 
F.  and  5.  and  those  under  whom  they  claim,  had  not  been  con- 
tinually so  seized  and  possessed  for  more  than  thirty  years  next 
before  the  said  5th  day  of  April  1825,  and  next  before  the  com- 
mencement of  the  proceedings  in  which  the  said  inquisition  was 
found,  and  had  not  during  that  time  paid  to  the  commonwealth 
the  annual  taxes  assessed  thereon,  for  each  and  every  year  next 
preceding  the  said  5th  day  of  April  1S25  and  the  commence- 
ment of  the  proceedings  aforesaid.  And  this  the  said  attorney 
general  prays  may  be  enquired  of  by  the  country ;  and  the  said 
A.  F.  and  E.  B.  likewise." 

{Demurrer  argued.) 

And  at  another  day,  to  wit,  at  a  superior  court  of  law  for  the 
said  county  of  ^.  held  for  the  trial  of  civil  causes,  at  the  capitol 
aforesaid,  on  thursday  the  5th  day  of  April  in  the  year  1827, 
came  as  well  the  plaintiffs  by  their  attorney,  as  the  attorney  for 
the  commonwealth  ;  and  thereupon  the  matters  of  law  arising 
upon  the  demurrer  filed  by  the  said  attorney  for  the  common- 
wealth to  the  said  monstrans  de  droit  were  argued ;  but  because 
the  court  is  not  advised  of  its  judgment  to  be  given  in  the  pre- 
mises, time  is  taken  to  consider  thereof. 

{Judgment  for  the  commonwealth.) 

And  now  at  this  day,  to  wit,  at  the  same  superior  court  of 
law,  continued  and  held  at  the  capitol  aforesaid  on  the  same 
day  and  year  first  herein  mentioned,  to  wit,  tuesday  the  tenth 
day  of  April  1827,  came  as  well  the  plaintiffs  by  their  attorney, 
as  the  attorney  for  the  commonwealth ;  and  the  court,  having 
maturely  considered  the  matters  of  law  arising  upon  the  de- 
murrer filed  by  the  attorney  for  the  commonwealth  to  the  said 
monstrans  de  droit,  is  of  opinion  that  the  said  monstraiis  de  droit, 
and  the  matters  therein  contained,  are  not  sufficient  in  law. 
Therefore  it  is  considered  that  the  plaintiffs  take  nothing  by  their 
said  mxmstrans  de  droit,  but  for  their  false  clamour  be  in  mercy 
47 


370  Writs  of  error  and  supersedeas. 

Sec.  and  that  the  commonwealth  recover  against  the  plaintiffs 
her  costs  by  her  in  this  behalf  expended. 

13.    Transcript  of  the  record  of  a  judgment  on  a  forthcoming  bond, 
obtained  by  default.     1  Rob.  Prac.  601.  664. 

Pleas  &c.  Be  it  remembered  that  at  this  same  term,  to  wit, 
at  a  circuit  superior  court  of  law  and  chancery  held  for  the 
county  of  H.  at  the  courthouse,  on  the  day  and  year  aforesaid, 

to  wit,  on  the day  of  in  the  year  ,  on  the 

motion  of  A.  B.  plaintiff  against  C.  D.  and  E.  F.  defendants,  on 
a  bond  conditioned  for  the  forthcoming,  on  the  day  of  sale,  of 
property  taken  under  execution,  which  bond  is  in  these  words, 
to  wit,  (here  ipsert  the  bond),  came  the  plaintiff  by  his  attorney 
&c.  (copying  the  entry  in  p.  274.  No.  2). 

The  following  is  a  copy  of  the  execution  returned  with  the 
bond  above  mentioned,  and  remaining  filed  therewith,  and  also 
of  the  return  on  the  said  execution :  (here  copy  the  executioa 
and  return). 

14.   Transcript  of  the  record  of  a  motion  on  which  the  defendants 
appeared.     1  Rob.  Prac.  591.  654. 

Where  the  defendant  has  appeared,  without  making  any  objection  to 
the  proceeding  for  want  of  notice,  and  without  filing  any  bill  of  excep- 
tions, an  appellate  court  will  presume  that  there  was  due  notice.  In  such 
a  case,  if  the  clerk  copy  into  the  record  a  paper  as  being  the  notice 
filed  upon  the  motion,  the  appellate  court  will  not  regard  it  as  any  part 
of  the  record.     Ayres  v.  Lewellen,  3  Leigh  609. 

In  a  case  in  which  judgment  has  been  rendered  on  a  forthcoming 
bond,  there  may  be  a  variance  from  the  execution  in  the  recital  of  the 
bond,  but  if  the  defendant  appeared  in  the  court  below,  and  did  not 
make  the  execution  a  part  of  the  record  by  bill  of  exceptions  or  other- 
wise, nor  raise  any  objection  there  on  account  of  the  variance,  an  ap- 
pellate court  will  not  regard  it.     See  1  Rob.  Prac.  601. 

If  no  objection  that  the  evidence  is  defective  be  stated  on  the  record, 
an  appellate  court  will  presume  that  it  was  sufficient  to  warrant  the 
judgment,  on  the  same  principle  that  upon  an  appeal  from  a  general  ver- 
dict, where  no  evidence  is  stated,  its  sufficiency  to  justify  the  verdict  is 
presumed ;  the  cases  being  in  principle  the  same.  Winston  v.  Over- 
seers of  Poor,  4  Call  357. 


15. 


Transcript  of  the  record  of  a  motion  by  a  surety  against  his 
principal. 


Where  judgment  has  been  rendered  on  behalf  of  a  surety  against  his 
principal,  upon  due  notice,  and  the  proofs  upon  which  the  judgment 
was  given  are  not  made  a  part  of  the  record  in  a  legal  manner,  an  ap- 


Writs  of  error  and  mpersedeas.  371 

pellate  court  cannot  go  into  the  enquiry  whether  the  plaintiff  was  surety 
for  the  defendant,  or  whether  the  plaintiff  has  paid  the  money  which  he 
seeks  to  recover  from  the  defendant.  These  facts,  being  the  foundation 
of  the  motion,  will  be  presumed  by  the  appellate  court  to  have  been  pro- 
perly in  proof  in  the  court  below.  An  appellate  court  will  so  presume, 
though  it  be  a  case  in  which  the  defendant  failed  to  appear  in  the  court 
below,  and  judgment  was  rendered  against  him  by  default.  Nor  can 
the  omission  by  the  defendant  to  have  the  proofs  made  part  of  the  record 
by  bill  of  exceptions,  or  some  other  legal  mode,  be  supplied  by  the 
clerk's  copying  certain  papers  at  the  foot  of  the  record,  and  certifying 
that  those  papers  were  the  evidence  upon  which  the  judgment  was 
founded.  The  certificate  of  the  clerk  to  that  effect  can  have  no  more 
weight  than  that  of  any  other  individual.  It  is  not  competent  to  him 
to  certify  what  use  was  made  of  the  papers.  That  must  be  shewn  by 
the  record  in  the  cause.  Cunningham  v.  Mitchell,  4  Rand.  189.  cited 
in  1  Rob.  Prac.  606. 

16.  Petition  to  circuit  court  for  a  supersedeas.     1  Rob.  Prac.  653. 
656,  7.  660,  61. 

To  the  circuit  superior  court  of  law  and  chancery  for  the 
county  of  H. 

The  petition  of  C.  D.  respectfully  represents,  that  he  is  ag- 
grieved by  a  final  judgnaent  of  the  county  court  of  if.  rendered 

on  the day  of ,  in  an  action  of ,  wherein  A. 

B.  was  plaintiff  and  the  said  C.  D.  defendant.  A  transcript  of 
the  record  of  the  judgment  complained  of  is  herewith  presented, 
by  which  it  will  be  perceived  that  the  case  is  as  follows:  (here 
state  the  case).  Your  petitioner  assigns  the  following  errors  in 
the  said  judgment :  (here  set  them  forth).  And  for  the  said  er- 
rors, he  prays  a  writ  of  supersedeas  to  the  judgment  aforesaid. 

C.  D.  by his  counsel. 

17.   Certificate  of  counsel,     1  Rob.  Prac.  657. 

I, ,  an  attorney  practising  in  the  circuit  superior  court 

of  law  and  chancery  for  the  county  of ,  do  certify  that 

in  my  opinion  there  is  sufficient  matter  for  reversing  the  judg- 
ment complained  of  in  the  foregoing  petition. 

18.   Order  denying  supersedeas.    1  Rob.  Prac.  653. 

C.  D.  preferred  a  petition  for  a  writ  of  supersedeas  to  a  judg- 
ment of  the  county  court  of  H.  rendered  on  the day  of 

,  in  an  action  of ,  wherein  A.  B.  was  plaintiff' and 

the  said  C  i?.  defendant,  with  a  certificate  of  counsel  practising 
in  this  court,  that  in  his  opinion  there  is  sufficient  matter  for  re- 


372  Writs  of  error  and  supersedeas, 

versing  the  judgment  complained  of,  and  also  with  a  transcript 
of  the  record  of  the  said  judgment,  annexed  to  the  said  peti- 
tion. Whereupon  the  said  transcript  of  the  record  being  seen 
and  inspected,  the  court  deems  the  judgment  complained  of 
plainly  right,  and  doth  therefore  deny  the  writ  of  supersedeas 
prayed  for. 

19.   Order  awarding  siqjersedeas.     1  Rob.  Prac.  653.  658,  9. 

As  last,  to — being  seen  and  inspected,  the  court  is  of  opinion 
that  there  is  reasonable  doubt  of  the  justice  of  the  judgment 
complained  of,  fit  and  proper  to  be  argued  and  considered,  and 
doth  therefore  allow  the  writ  of  supersedeas  prayed  for.*  But 
before  the  issuing  of  the  said  writ,  the  said  C.  D.  or  some  re- 
sponsible person  is  to  enter  into  bond,  with  sufficient  security, 

in  the  penalty  of  $ ,  with  condition  to  paj'-  the  amount  of 

the  recovery,  and  all  costs  and  damages  which  may  be  awarded, 
in  case  the  judgment  be  affirmed. 

*  The  entry  will  slop  here,  where  the  petitioner  is  an  executor  or  administrator, 
and  obtains  a  supersedeas  to  a  judgment  against  him  in  that  character. 

20.  Record,  with  order  allowing  writ,  riot  delivered  to  cleric  in  15 
days,  hut  afterwards  received  hy  the  court.     1  Rob.  Prac.  658. 

A  supersedeas  having  been  allowed  by  the  judge  of  this  court 
in  vacation,  to  a  judgment  of  the  county  court  of  H.  rendered 
against  C.  D.  at  the  suit  of  A.  B.,  and  the  said  C.  D.  the  party 
who  prayed  the  supersedeas,  not  having  delivered  the  record,  with 
the  order  allowing  the  said  writ,  to  the  clerk  of  this  court  within 
fifteen  days  after  the  writ  of  supersedeas  was  allowed,  this  court, 
for  good  cause  shewn,  doth  now  receive  the  same. 

21.  Bond  given  heforc  supersedeas  is  issued.     1    Rob.   Prac.  658. 

Know  all  men  &c.  The  condition  of  the  above  obligation 
is  such,  that  whereas  C.  D.  hath  preferred  to  the  circuit  su- 
perior court  of  law  and  chancery  for  the  county  of  H.  {or,  to  the 
judge  of  the  &c.)  a  petition  for  a  writ  of  supersedeas  to  a  judg- 
ment of  the  county  court  of  li.  rendered  on  the  day  of 

,  in  an  action  of ,  wherein  A.B.  was  plaintiff  and 

the  said  C.  D.  defendant,  whereby  it  was  considered  that  &c. 
(stating  the  judgment)  ;  and  the  said  circuit  court  {or,  judge) 
hath  allowed  the  supersedeas  prayed  for,  upon  the  terms  provided 

by  law,  and  has  fixed  the  penalty  of  the  bond  to  be  $ : 

Now  if  the  said  C.  D.  his  executors  or  administrators,  shall  pro- 
secute the  said  writ  with  effect,  or  shall  well  and  truly  pay  the 


Writs  of  error  and  supersedeas.  373 

amount  of  the  judgment  aforesaid  of  the  said  county  court,  and 
all  such  costs  and  damages  as  shall  be  awarded,  in  case  the  said 
judgment  shall  be  affirmed,  then  the  above  obligation  is  to  be 
void,  otherwise  it  is  to  remain  in  full  force. 

22.    Wiit  of  supersedeas  to  Judgtnent  of  county  or  corpmation 
court.     1  Rob.  Prac.  660,  61. 

The  commonwealth  &c.  We  command  you  that  from  all 
further  proceedings  on  a  judgment  of  the  county  court  of  H. 

rendered  on   the  day  of ,  in  an  action  of , 

between  A.  B.  plaintiff  and  the  said  C.  D.  defendant,  whereby 
it  was  considered  that  &c.  (stating  the  judgment)you  altogether 
supersede  ;  which  judgment  before  our  circuit  superior  court  of 
law  and  chancery  for  the  said  county  of  H.  for  cause  of  error 
in  the  same  to  be  corrected,  on  the  petition  of  the  said  C.  D.  we 
have  caused  to  come,  he  the  said  C.  D.  having  given  security  to 
prosecute  with  effect,  and  if  the  judgment  aforesaid  shall  be  af- 
firmed, to  pay  the  same,  and  all  such  damages  and  costs  as  shall 
be  awarded.  We  also  command  you  that  you  give  notice  to  the 
said  A.  B.  that  he  be  before  the  judge  of  our  said  circuit  supe- 
rior court,  at  &c.  on  the  first  day  of  the  next  term,  then  and  there 
to  have  a  rehearing  of  the  whole  matter  in  the  judgment  afore- 
said contained.     And  have  then  &c. 

23.  Certiorari.     1  Rob.  Prac.  661,  2. 

The  commonwealth  &c.  Whereas,  on  the  petition  of  C.  D. 
a  supersedeas  has  issued  out  of  our  circuit  superior  court  of  law 
and  chancery  for  the  county  of  H.  to  a  judgment  of  the  court 
of  the  said  county,  rendered  on  &c.  in  &c.  between  &c.  whereby 
&c. ;  and  upon  the  said  supersedeas  there  will  be  a  rehearing  of 
the  whole  matter  in  the  judgment  aforesaid  contained  :  There- 
fore we  command  you  that  the  record  and  proceedings  in  the 
said  action,  with  all  things  touching  the  same,  as  fully  and  wholly 
as  they  now  exist  among  the  records  of  your  office,  to  the  judge 
of  our  said  circuit  superior  court,  at  &c.  on  the  first  day  of  the 
next  term,  under  your  hand  and  seal  you  do  certify,  and  safely 
send  enclosed  to  the  clerk  of  the  said  circuit  superior  court,  to- 
gether with  this  writ.     Witness  &c. 

24.  Certiorari  awarded  defendant,  o?i  suggestion  of  diminution. 

On  the  motion  of  the  defendant  by  his  attorney,  who  alleges 
diminution  in  the  record  sent  hither,  a  v/rito^  certiorari  is  award- 
ed, to  be  directed  to  the  justices  of  the  court  of  the  said  county, 


374  Writs  of  error  and  supersedeas. 

to  certify  the  record  more  fully  to  this  court,  returnable  here  on 
thursday  the  tenth  day  of  the  present  term. 

25,  Writ  of  certiorari  issued  after  suggestion  of  diminution,     1  Rob. 

Prac.  661,  2. 

The  commonwealth  of  Virginia  io  the  justices  of  the  court  of 
H.  county,  greeting  :  Whereas,  on  the  petition  of  C.  D.  a  stiper- 
sedeas  was  lately  issued  out  of  &c.  to  a  judgment  of  &c.  ren- 
dered on  &c.  in  &c.  between  &c.  whereby  &c.  and  in  the  record 
and  proceedings  in  the  said  action,  sent  to  our  said  circuit  supe- 
rior court  by  reason  of  the  said  supersedeas,  diminution  is  sug- 
gested :  Therefore  we  command  you  and  every  of  you,  that  you 
or  one  of  you,  under  your  or  one  of  your  hands  and  seals,  the 
record  and  proceedings  aforesaid  more  fully  to  the  judge  of  our 
said  circuit  superior  court,  at  &c.  on  &c.  do  send  and  certify  en- 
closed, returning  also  this  writ.     Witness  &c. 

26.  Petition  for  writ  of  errm',  where  petitioner  cannot  give  security, 

1  Rob.  Prac.  661.     Amis  v.  Koger,  1  Leigh  221. 

Uike  the  petition  for  a  supersedeas  in  No.  16.  to  the  end  of  the  as- 
signment of  errors,  and  then  as  follows :  And  for  the  said  errors,  he 
prays  a  writ  of  error  to  the  said  judgment.  Your  petitioner  is 
unable  to  give  security  for  the  satisfaction  of  the  said  judgment, 
and  therefore  asks  that  the  said  writ  of  error  may  be  granted 
upon  condition  that  bond  and  security  be  given  only  for  the  costs 
thereof. 

27.   Order  awarding  writ  of  error ,  where  petitioner  cannot  give 
security.'    1  Rob.  Prac.  661. 

C.  D.  preferred  a  petition  for  a  writ  of  error  to  a  judgment  of 

the  county  court  of  H.  rendered  on  the day  of ,  in 

an  action  of ,  betvi^een  A.  B.  plaintiff  and  the  said  C.  D, 

defendant,  with  a  certificate  of  counsel  that  in  his  opinion  there 
is  sufficient  matter  for  reversing  the  judgment  complained  of, 
and  also  with  a  transcript  of  the  record  of  the  said  judgment, 
annexed  to  the  said  petition.  W^hereupon,  the  said  transcript  of 
the  record  being  seen  and  inspected,  the  court  is  of  opinion  that 
there  is  reasonable  doubt  of  the  justice  of  the  judgment  com- 
plained of,  fit  and  proper  to  be  argued  and  considered,  and  doth 
therefore  allow  the  writ  of  error  prayed  for.  And  the  said  C.  D. 
alleging  that  he  is  unable  to  give  security  for  the  satisfaction  of 
the  said  judgment,  the  said  writ  of  error  is  granted  upon  condi- 
tion that  bond  and  security  be  given  in  the  penalty  of  $ , 


Wiits  of  error  and  swpersedeas.  375 

for  the  costs  thereof.  But  it  is  not  to  operate  as  a  supersedeas  to 
the  judgment,  or  in  any  manner  hinder  or  delay  the  execution 
thereof. 

28.    Bond  given  for  costs  before  writ  of  error  is  issued.     1  Rob. 

Prac.  661. 

Lilce  the  supersedeas  bond  in  No.  21.  {inserting  "  eiror''^  for  ^*  su- 
persedeas'^)  to — and  the  said  circuit  court  hath  allowed  the  writ 
of  error  prayed  for:  and  the  said  C.  D.  alleging  that  he  is  una- 
ble to  give  security  for  the  satisfaction  of  the  said  judgment,  the 
said  writ  of  error  has  been  granted  upon  condition  that  bond 

and  security  be  given  in   the  penalty  of  $ ,  for  the  costs 

thereof:  Now  if  the  said  C.  JD.  his  executors  or  administrators, 
shall  prosecute  the  said  writ  with  effect,  or  shall  well  and  truly 
pay  all  such  costs  as  may  be  awarded  against  him  or  them  upon 
the  said  writ,  then  the  above  obligation  is  to  be  void,  otherwise 
it  is  to  remain  in  full  force. 

29.   Writ  of  error.     1  Rob.  Prac.  661. 

The  commonwealth  of  Virginia  to  the  justices  of  the  court 
of  H.  county,  greeting  :  Because,  in  the  giving  of  judgment  in 

a  certain  action  of ,  which  was  in  our  said  court  before 

you  depending,  between  A.  B.  plaintiff  and  C.  D.  defendant,  ma- 
nifest error  hath  happened,  to  the  great  damage  of  the  said  CD. 
as  by  his  complaint  to  our  circuit  superior  court  of  law  and 
chancery  for  the  said  county  of  H.  is  alleged  :  We,  being  wil- 
ling that  the  error  (if  any  there  be)  should  in  due  manner  be  cor- 
rected, and  full  and  speedy  justice  done  to  the  parties  aforesaid 
in  this  behalf,  command  you  that  if  final  judgment  be  thereupon 
by  you  given,  then  to  our  said  circuit  superior  court,  on  the  first 
day  of  the  next  term,  you,  or  one  of  you,  distinctly  and  openly 
send  the  record  and  proceedings  in  the  said  action,  with  all 
things  touching  the  same,  together  with  this  writ,  that,  the  re- 
cord and  proceedings  aforesaid  being  inspected,  we  may  further 
cause  to  be  done  thereupon  what  of  right  and  according  to  law 

ought  to  be  done.     Witness  ,  clerk  of  our  said  circuit 

superior  court,  at  &c. 

30.   Order  quashing  supersedeas  which  had  been  improvidently  allowed, 
Aijres  V.  LewelUn,  3  Leigh  609. 

This  day  came  the  parties  by  their  attorneys,  and  the  court, 
on  inspecting  the  transcript  of  the  record  of  the  judgment  afore- 
said, being  of  opinion  that  the  wntoi  supersedeas  awarded  thereto 


376  Writs  of  error  and  supersedeas. 

was  improvidently  allowed,  it  is  ordered  that  the  same  be 
quashed,  and  that  the  plaintiff  pay  to  the  defendant  his  costs  by 
him  in  this  court  expended. 

31.  Flaintiff  being  called  and  not  appearing,  supersedeas  dismissed. 

The  plaintiff  being  solemnly  called  and  not  appearing,  on  the 
motion  of  the  defendant  by  his  attorney,  it  is  ordered  that  this 
supersedeas  be  dismissed,  and  that  the  plaintiff  pay  to  the  defen- 
dant his  costs  by  him  in  this  court  expended. 

32.  Supersedeas  revived  by  consent.     1  Rob.  Prac.  G62,  3. 

The  plaintiff  being  dead,  by  consent  of  J.  C.  his  executor  and 
the  defendant  by  their  attorneys,  it  is  ordered  that  this  superse- 
deas stand  and  be  revived  in  the  name  of  the  said  executor. 

33.  Scire  facias  awarded  to  revive.     1  Rob.  Prac.  662,  3.      Green 
V.  Watlcins,  6  Wheat.  260.  and  rule  XXXI.  prefixed  to  same 

volume. 

The  plaintiff  being  dead,  on  the  motion  of  the  defendant  by 
his  attorney,  a  writ  of  scire  facias  is  awarded  him,  to  revive  this 
supersedeas  in  the  name  of  J.  W.  the  executor  of  ihe  said  plain- 
tiff, returnable  here  &c. 

34.    Writ  of  scire  facias.     1  Rob.  Prac.  662,  3. 

Whereas  lately  in  our  court  of  our  said  county,  by  the  judg- 
ment of  that  court,  it  was  considered  that  W.  G.  M.  executor  of 
L.  H.  deceased  recover  against  L.  H.  &c.  (state  the  judgment) ; 
as  by  the  record  and  process  thereupon,  which  before  our  circuit 
superior  court  of  law  and  chancery  for  the  said  county,  by  rea- 
son of  a  writ  of  error  {or,  supersedeas)  to  the  said  judgment,  upon 
the  petition  of  the  said  L.  H.  were  lately  sent,  to  us  appears  : 
And  whereas,  after  the  said  writ  of  error  {or,  supersedeas)  was 
sued  out,  and  before  our  said  circuit  superior  court  had  given 

its  judgment  in  the  case,  the  said died,  having  first  made 

his  last  will  and  testament,  and  thereof  appointed  E.  F.  execu- 
tor, who,  since  the  death  of  the  said ,  hath  duly  proved 

the  said  will,  and  taken  upon  himself  the  execution  of  the  same 
{or — died  intestate,  since  whose  death,  administration  of  the  per- 
sonal estate  of  the  said  deceased  has  been  granted  to  E.  F.)  as 

we  are  informed  :    And  the  said  having  supplicated  us 

for  a  proper  remedy  in  this  behalf,  and  we  being  willing  that 
speedy  justice  be  done  to  the  said  parties  :  Therefore  we  com- 


Writs  of  error  and  supersedeas.  377 

mand  you  that  you  make  known  to  the  said that  he  be 

before  the  judge  of  our  said  circuit  superior  court,  at  the  court- 
house, on  the  first  day  of  the  next  term,  to  shew  cause,  if  any 
he  can,  why  the  said  writ  of  error  (or,  supersedeas)  should  not  be 
revived  against  him,  *the  jiidgtneiit  aforesaid  examined,  and  the  er- 
rar,  if  any,  corrected;  and  further  to  do  and  receive  what  our  said 
court  then  and  there  of  him  in  this  part  shall  consider.  And 
have  &c. 

*  If  the  scire  facias  is  issued  at  the  instance  of  the  defendant  in  error, 
instead  of  the  words  in  italics,  say,  "  and  the  judgment  aforesaid  af- 
firmed." 

35.  Alias  scire  facias  awarded. 

The  writ  of  scire  facias  awarded  at  the  last  term,  to  revive 
this  supersedeas,  not  being  returned,  on  the  motion  of  the  plaintiff 
by  his  attorney,  an  alias  writ  of  scire  facias  is  awarded  him,  re- 
turnable here  &c. 

36.   Order  of  publication. 

The  alias  writ  of  scire  facias  heretofore  awarded  against  the 
defendant,  to  revive  this  cause  in  the  name  of  A.  B.  the  execu- 
tor of  the  plaintiff,  not  being  executed,  and  it  appearing  to  the 
satisfaction  of  the  court  that  the  said  defendant  is  not  an  inha- 
bitant of  this  commonwealth  ;  on  the  motion  of  the  said  execu- 
tor, it  is  ordered  that  the  said  defendant  do  appear  here  on  the 
first  day  of  the  next  term,  and  shew  cause,  if  any  he  can,  why 
the  said  supersedeas  should  not  stand  and  be  revived  in  the  name 
of  the  said  executor,  and  proceeded  in  against  the  said  defen- 
dant ;  and  that  a  copy  of  this  order  be  forthwith  inserted  in 
some  newspaper  printed  in  the  city  o£  Richmond,  for  two  months 
successively,  and  posted  at  the  front  door  of  the  capitol  in  the 
said  city. 

37.   Wlierc  one  of  two  plaintiffs  dies,  abatement  as  to  him.     1  Rob. 
Prac.  663.     Hairston  v.  Woodsy  9  Leigh  308. 

The  plaintiff  S.  H.  having  died,  it  is  ordered  that  this  super- 
sedeas  abate  as  to  him,  and  proceed  at  the  suit  of  the  surviving 
plaintiff  against  the  defendant. 

48 


378  Writs  of  error  and  supersedeas. 

38.  Judgment  of  affirmance.     1  Rob.  Prac.  662,  3, 4. 

S.  W.         plaintiff")      Vpon  a  writ  o{  supersedeas  io  a  ^udg- 
against  >  ment  of  the  court  of  Gr.  county,  reco- 

G.  B.  defendant.  )  vered,  on  the  20th  day  of  January 
1794,  by  the  defendant  against  the  plaintiff,  for  $180  and 
costs,  but  to  be  discharged  &c. 

This  day  came  the  parties  by  their  attorneys,*  and  thereupon 
the  transcript  of  the  record  of  the  judgment  aforesaid  being 
seen  and  inspected,  it  seems  to  the  court  here  that  there  is  no 
error  in  the  said  judgment:  Therefore  it  is  considered  that  the 
same  be  affirmed,  and  that  the  defendant  recover  against  the 
plaintiff  his  costs  by  him  about  his  defence  in  this  behalf  ex- 
pended. (If  the  plaintiff  in  error  be  an  executor  or  adminis- 
trator, add  the  following  words :)  to  be  levied  of  the  goods  and 
chattels  of  the  decedent,  in  the  hands  of  the  plaintiff  to  be  ad- 
ministered. 

*  If  the  defendant  only  appear,  say — This  day  came  the  defen- 
dant by  his  attorney,  and  the  plaintiff,  being  solemnly  called, 
came  not.  Whereupon  the  transcript  &c.  J/'  the  affirmance  he 
by  consent,  say — This  day  came  the  parties  by  their  attorneys, 
and  by  their  consent,  it  is  considered  &c. 

39.  Affinnance  after  amending  the  transcript  of  the  record.* 

At  the  foot  of  the  judgment  of  affirmance  was  the  following: 
Memorandum,  that  on  the  motion  of  R,  P.  ^  Co.  the  defen- 
cision  in  the  last  suit,  by  their  attorney,  and  previous  to  a  de- 
cision therein,  the  clerk  of  this  court,  by  order  of  the  court, 
amended  the  transcript  of  the  record  of  the  judgment  of  the 
said  county  court,  by  inserting  therein,  after  the  word  "  ex- 
pended" in  the  judgment,  these  words,  *'  to  be  levied  of  the 
goods  and  chattels  of  the  testator  in  the  hands  of  the  defendants 
to  be  administered;"  it  appearing  to  the  court  that  the  same 
were  omitted  through  misprision  of  the  clerk  of  the  said  county 
court. 

*  I  recollect  a  case  (though  I  have  forgotten  the  names  of  the  parties) 
where,  upon  an  appeal  from  the  county  court  of  Middlesex  to  the  district 
court  of  King  and  Queen,  a  variance  was  suggested  between  the  mi- 
nutes and  the  record,  and  the  clerk  being  summoned  to  attend  the  dis- 
trict court  with  his  minute  book,  and  the  variance  appearing,  he  was 
directed  by  the  court  to  amend  the  record ;  and  this  proceeding  was 
sanctioned,  upon  an  appeal  to  this  court.  By  Lyons,  J.  in  Gordon  v. 
Frazier  S^c.  2  Wash.  134. 


Writs  of  error  and  supersedeas.  379 

40.  Affirmance  after  ascertaining  variance  between  judgment  and 

declaration  to  he  a  clerical  misprision. 

This  day  came  the  parlies  by  their  attorneys,  and  thereupon, 
as  well  the  transcript  of  the  record  of  the  judgment  aforesaid, 
as  the  minutes  of  the  proceedings  of  the  said  county  court,  and 
the  original  papers  filed  in  the  cause,  now  produced  in  court  by 
the  clerk  of  the  said  county  court,  being  seen  and  inspected,  it 
appears  from  the  said  minute  book  and  original  papers,  that  the 
variance  between  the  judgment  aforesaid  and  the  declaration  is 
occasioned  by  a  misprision  of  the  clerk,  and  therefore  that  there 
is  no  error  in  the  said  judgment :  Therefore  it  is  considered  that 
the  same  be  affirmed  &c. 

41.  Scire  facias  to  revive  against  plaintiff^  s  executor  returned  exe- 

cuted, and  judgment  affirmed. 

This  day  came  the  defendant  by  his  attorney,  and  the  writ  of 
scire  facias  awarded  at  the  last  term  against  the  plaintiff,  to  re- 
vive this  cause,  being  returned  executed,  the  said  plaintiff  was 
solemnly  called,  but  came  not.  Whereupon  the  transcript  of 
the  record  of  the  judgment  aforesaid  being  seen  and  inspected, 
it  seems  to  the  court  here  that  there  is  no  error  in  the  said  judg- 
ment :  Therefore  it  is  considered  that  the  same  be  affirmed,  and 
levied  of  the  goods  and  chattels  of  the  said  testator,  in  the  hands 
of  the  plaintiff  to  be  administered  ;  and  also  that  the  defendant 
recover  against  the  plaintiff  his  costs  by  him  in  this  court  ex- 
pended, to  be  levied  also  of  the  goods  and  chattels  of  the  said 
testator,  in  the  hands  of  the  plaintiff  to  be  administered. 

42.  Acknowledgment  of  no  error,  artd  judgment  affirmed. 

This  day  came  the  parties  by  their  attorneys,  and  the  plaintiff 
acknowledges  that  there  is  no  error  in  the  said  judgment : 
Therefore  it  is  considered  &c. 

43.  After  revival  in  appellate  court,  judgment  reversed  and  verdict 
set  aside,  but  action  ordered  to  be  ahated.     1  Rob.  Prac.  663. 

it  seems  to  the  court  here,  that  there  is  error  in  the  said 

judgment,  in  this,  that  the  instruction  given  to  the  jury  at  the 
trial  was  erroneous:  Therefore  it  is  considered  that  the  said 
judgment  be  reversed  and  annulled,  and  that  the  plaintiff  reco- 
ver against  the  defendant*  &c.  And  ihis  court  proceeding  to 
give  such  judgment  as  the  said  county  court  ought  to  have  given, 
it  is  further  considered  that  the  verdict  of  the  jury  be  set  aside. 


380  Wiits  of  error  and  supersedeas. 

And  the  cause  is  sent  back  to  the  said  county  court,  wherein  an 
abatement  is  to  be  entered  by  reason  of  the  death  which  has 
occurred,  inasmuch  as  the  action  was  not  originally  maintaina- 
ble by  (or,  against)  an  executor  or  administrator. 

*  If  the  supersedeas  has  been  revived  in  the  name  of  the  personal  re- 
presentative of  the  plaintiff  in  error,  say — "  the  costs  expended,  as  well 
by  his  decedent  as  by  himself,  in  the  prosecution  of  his  writ  aforesaid 
here."  If  the  revival  has  been  against  the  representative  of  the  defen- 
dant in  error,  say — "  his  costs  by  him  expended  in  the  prosecution  of 
his  writ  aforesaid  here,  to  be  levied  of  the  goods  and  chattels  of  the  de- 
cedent, in  the  hands  of  the  defendant  to  be  administered." 

44.  Judgment  for  defendant  reversed,  hecaiise  improperly  given  for 
him  upon  demurrers  to  replications  to  second  and  third  pleas,  and 
new  judgment  entered  for  him  hy  appellate  court,  upon  demurrer  to 
rejoinder  to  replication  to  first  plea.     1  Rob.  Prac.  665. 

— —  it  seems  to  the  court  here,  that  there  is  error  in  the  said 
judgment,  in  this,  that  the  said  county  court  has  given  judgment 
generally  upon  all  the  pleadings  in  favour  of  the  defendant,  in- 
stead of  giving  judgment  for  him  only  upon  the  demurrer  to  the 
rejoinder  to  the  replication  to  his  first  plea  ;  which  error  is  inju- 
rious to  the  plaintiff;  for  though  the  defendant  must  have  final 
judgment  in  this  action,  because  of  the  defect  in  the  replication 
to  his  first  plea,  yet  that  defect  is  in  a  matter  which  might  be 
remedied  in  a  new  action,  whereas  the  second  and  third  pleas 
go  to  the  foundation  of  the  action,  and  a  judgment  for  the  de- 
fendant upon  his  demurrers  to  the  replications  to  those  pleas 
would  be  a  bar  to  a  future  action  for  the  same  cause,  when,  in 
the  opinion  of  this  court,  the  matter  alleged  by  those  pleas  is 
fully  avoided  by  the  replications  thereto :  Therefore  it  is  consi- 
dered that  the  judgment  aforesaid  be  reversed  and  annulled, 
and  that  the  plaintiff  recover  against  the  defendant  his  costs  by 
him  expended  in  the  prosecution  of  his  writ  aforesaid  here.  And 
this  court  proceeding  to  give  such  judgment  as  the  said  county 
court  ought  to  have  given,  it  is  further  considered  that  the  defen- 
dant's demurrers  to  the  plaintiff's  replications  to  his  second  and 
third  pleas  be  overruled  ;  that  the  plaintiff's  demurrer  to  the  de- 
fendant's rejoinder  to  the  replication  to  his  first  plea  be  also  over- 
ruled ;  and  that  the  said  plaintiff  take  nothing  by  his  bill  in  this 
action,  but  be  in  mercy  &c.  and  that  the  defendant  go  thereof 
without  day,  and  recover  against  the  plaintiff  his  costs  by  him 
about  his  defence  of  the  said  action  expended. 


Writs  of  error  and  supersedeas.  381 

45.  Judgment  in  original  action  being  erro7ieous,  subsequent  judgment 
on  foithcoming  bond,  depending  on  it,  likewise  reversed.  1  Rob. 
Prac.  665.     Barton  v.  Petit  |'c.  7  Cranch  288. 

it  seems  to  the  court  here,  that  there  is  error  in  the  judg- 
ment in  the  original  action,  in  this,  that  the  said  county  court 
erred  in  admitting  in  evidence,  at  the  trial,  the  document  men- 
tioned in  the  first  bill  of  exceptions ;  and  it  also  seems  to  the 
court,  that  as  the  subsequent  judgment  on  the  forthcoming  bond 
depends  on  the  prior  judgment  in  the  action,  that  subsequent 
judgment  cannot  remain  in  force  :  Therefore  it  is  considered  that 
the  judgment  in  the  original  action,  and  the  judgment  on  the 
forthcoming  bond,  be  each  reversed  and  annulled  ;  that  the  said 
forthcoming  bond,  and  the  execution  under  which  it  was  taken, 
be  quashed  ;  and  that  the  plaintiff  recover  against  the  defendant 
his  costs  by  him  expended  in  the  prosecution  of  his  writ  afore- 
said here.  And  this  court  proceeding  to  give  such  judgment  as 
the  said  county  court  ought  to  have  given,  it  is  further  considered 
that  the  verdict  of  the  jury  be  set  aside.  And  the  cause  is  re- 
manded to  the  said  county  court,  for  a  new  trial  to  be  had 
therein,  on  which  new  trial  the  document  aforesaid  is  not  again 
to  be  received  as  evidence. 

46.  Judgment  reversed  for  error  to  the  injury  of  defendant,  and  costs 
recovered  by  him  as  the  party  prevailing.     1  Rob.  Prac.  666. 

it  seems  to  the  court  here,  that  there  is  error  in  the  said 


judgment,  in  this,  that  &c.  (stating  the  error)  :  Therefore  it  is 
considered  that  the  said  judgment  be  reversed  and  annulled  ; 
but  the  said  error  being  to  the  injury  of  the  defendant  in  error, 
it  is  therefore  considered  that  the  said  defendant,  as  the  party 
substantially  prevailing,  recover  against  the  plaintiff  his  costs 
by  him  about  his  defence  in  this  behalf  expended.  And  this 
court  proceeding  to  give  such  judgment  as  the  said  county  court 
ought  to  have  given,  it  is  further  considered  that  &c. 

47.  Judgment  reversed,  because  evidence  was  improperly  excluded  at 
the  trial ;  and  cause  sent  back.     1  Rob.  Prac.  666,  7. 

it  seems  to  the  court  here,  that  there  is  error  in  the  said 


judgment,  in  this,*  that  the  evidence  stated  in  the  first  bill  of 
exceptions  to  have  been  excluded  by  the  said  county  court,  ought 
to  have  been  received  :  Therefore  it  is  considered  that  the  said 
judgment  be  reversed  and  annulled,  and  that  the  plaintiff  reco- 
ver against  the  defendant  his  costs  by  him  expended  in  the  pro- 
secution of  his  writ  aforesaid  here.     And  this  court  proceeding 


382  Writs  of  error  and  supersedeas. 

to  give  such  judgment  as  the  said  county  court  ought  to  have 
given,  it  is  further  considered  that  the  verdict  of  the  jury  be  set 
aside.  And  the  cause  is  remanded  to  the  said  county  court,  for 
a  new  trial  to  be  had  therein,  on  vi^hich  new  trial  the  evidence 
erroneously  excluded  as  aforesaid  is  to  be  admitted,  if  the  same 
shall  be  again  offered. 

*  If  the  error  be  in  admitting  improper  evidence,  the  form  in  No.  45. 
may  be  adapted  to  the  case. 

48.  Judgment  by  default  reversed  for  defect  in  declaration  ;  and  lorit 
being  defective  also,  fna^udgment  entered.    1  Rob.  Prac.  667. 

it  seems  to  the  court  that  there  is  error  in  the  said  judg- 
ment, in  this,  that  the  declaration  is  radically  defective,  and  that 
the  writ  is  defective  also  :  Therefore  it  is  considered  that  the 
said  judgment  be  reversed  and  annulled,  and  that  the  plaintiff 
recover  against  the  defendant  his  costs  by  him  expended  in  the 
prosecution  of  his  writ  aforesaid  here.  And  this  court  proceed- 
ing to  give  such  judgment  as  the  said  county  court  ought  to  have 
given,  it  is  further  considered  that  the  plaintifT  in  the  action  take 
nothing,  but  for  his  false  clamour  be  in  mercy  &c.  and  that  the 
defendant  in  the  action  go  thereof  without  day,  and  recover 
against  the  said  plaintiff  his  costs  by  him  about  his  defence  of 
the  said  action  expended. 

49.  Judgment  by  default  reversed  for  defect  in  declaration;  and  writ 
being  correct,  jyroceedings  subsequent  to  writ  set  aside,  and  cause 
remanded.  1  Rob.  Prac.  667.  Shelton's  ex'ors  v.  Welsh's 
adm'rs,  7  Leigh  175. 

it  seems  to  the  court  that  there  is  error  in  the  said  judg- 
ment, in  this,  that  the  declaration  is  radically  defective  :  There- 
fore it  is  considered  &c.  (as  last).  And  this  court  proceeding 
&c.  (as  last),  it  is  further  considered  that  all  the  proceedings 
subsequent  to  the  writ  be  set  aside.  And  the  cause  is  remanded 
to  the  said  county  court,  to  be  by  that  court  sent  to  the  rules, 
and  proceeded  in  from  the  writ. 

50.  Judgment  for  plaintiff,  where  defendant  liad  demurred,  reversed 
for  defect  in  declaration,  and  final  judgment  entered,     1  Rob. 

Prac.  667. 

it  seems  to  the  court  that  there  is  error  in  the  said  judg- 
ment, in  this,  that  the  matters  contained  in  the  declaration  are 
not  suiEcient  in  law  to  have  and   maintain  the  action,  and  that 


Writs  of  efrror  arid  supersedeas.  383 

the  demurrer  to  the  said  declaration  ought  to  have  been  sus- 
tained :  Therefore  it  is  considered  &c.  (as  before).  And  this 
court  proceeding  &c.  (as  before),  it  is  further  considered  that  the 
demurrer  to  the  declaration  be  sustained,  and  that  the  plaintiff 
in  the  action  take  nothing,  but  for  his  false  clamour  be  in  mercy 
&c.  and  that  the  defendant  in  the  action  go  thereof  without  day, 
and  recover  against  the  said  plaintiff  his  costs  by  him  about 
his  defence  of  the  said  action  expended. 

51.  Judgment  for  defeiidant  on  dermirrer  to  declaration  reversed;  and 
there  being  no  issue  in  fact,  and  the  action  lacing  for  damages, 
cause  remanded  to  have  the  dam/iges  (issessed.     1  Rob.  Prac.  667. 

it  seems  to  the  court  that  there  is  error  in  the  said  judg- 
ment, in  this,  that  the  matters  contained  in  the  declaration  are 
sufficient  in  law  to  have  and  maintain  the  action,  and  that  the 
demurrer  to  the  said  declaration  ought  to  have  been  overruled  : 
Therefore  it  is  considered  &c.  (as  before).  And  this  court  pro- 
ceeding &c.  (as  before),  it  is  further  considered  that  the  demurrer 
to  the  declaration  be  overruled,  and  that  the  plaintiff  in  the  ac- 
tion recover  against  the  defendant  in  the  action  such  damages 
as  the  said  plaintiff  has  sustained  by  occasion  of  the  matters 
in  the  declaration  mentioned,  which  damages  are  to  be  enquired 
of  by  a  jury.  And  the  cause  is  remanded  to  the  said  county 
court,  for  further  proceedings  to  be  had  therein. 

52.  Judgment  for  defendant  an  demurrer  to  one  plea  reversed,  and 
catise  remanded  for  trial  of  issue  in  fact  joitied  upon  another  plea. 
1  Rob.  Prac.  668. 

it  seems  to  the  court  here,  that  there  is  error  in  the  said 

judgment,  in  this,  that  the  matters  contained  in  the  second  plea 
are  not  sufficient  in  law  to  bar  or  preclude  the  plaintiff  from 
having  or  maintaining  his  action,  and  that  the  demurrer  to  the 
said  second  plea  ought  to  have  been  sustained  :  Therefore  it  is 
considered  &c.  (as  before).  And  this  court  proceeding  &c.  (as 
before),  it  is  further  considered  that  the  demurrer  to  the  said  se- 
cond plea  be  sustained,  and  that  a  trial  be  had  of  the  issue  in 
fact  joined  upon  the  first  plea.  And  the  cause  is  remanded  to 
the  said  county  court,  for  further  proceedings  to  be  had  therein. 

53.  Jxidgment  foi-  plaintiff,  on  special  demurrer  to  his  replication,  re- 
versed ;  hut  defect  being  only  in  form,  cause  remanded,  with  leave  to 
amend.     1  Rob.  Prac.  667,  8. 

it  seems  to  the  court  here,  that  there  is  error  in  the  said 


judgment,  in  this,  that  the  matters  contained  in  the  replication, 


384  Writs  of  error  and  supersedeas. 

in  the  form  in  which  they  are  pleaded,  are  not  sufficient  in  law 
to  have  and  maintain  the  action  :  Therefore  it  is  considered  &c. 
(as  before).  And  this  court,  proceeding  &c.  (as  before),  is  of 
opinion  that  the  demurrer  to  the  replication  ought  to  be  sustain- 
ed, and  the  costs  occasioned  by  the  fiUng  the  said  insufficient 
replication  ought  to  be  paid  by  the  party  filing  the  same ;  but 
inasmuch  as  the  said  replication  is  defective  only  in  form,  the 
court  is  further  of  opinion  that  the  plaintiff  in  the  action  ought 
to  be  allowed  to  amend  the  same,  on  his  paying  such  costs  as 
aforesaid,  without  having  judgment  entered  against  him  upon 
the  demurrer.  And  the  cause  is  remanded  to  the  said  county 
court,  with  directions  to  allow  such  amendment,  on  the  terms 
aforesaid,  if  a  motion  be  made  for  that  purpose ;  and  if  no  such 
motion  be  made,  then  to  enter  final  judgment  for  the  defendant 
in  the  action,  upon  the  said  demurrer. 

64.  Judgment  reversed  because  there  were  two  issues,  and  verdict  re- 
sponded only  to  one;  and  cause  remanded  for  new  trial  on  both. 
1  Rob.  Prac.  668. 

it  seems  to  the  court  here,  that  there  is  error  in  the  said 


judgment,  in  this,  that  there  were  two  issues  joined  between  the 
parties,  and  the  verdict  is  only  responsive  to  one :  Therefore 
&c.  (as  before).  And  this  court  proceeding  &c.  (as  before),  it  is 
further  considered  that  the  verdict  be  altogether  set  aside,  and  a 
new  trial  had  in  the  cause  upon  both  issues.  And  the  cause  is 
remanded  to  the  said  county  court,  for  such  new  trial  to  be  had 
therein. 

55.  Judgment  being  reversed  and  new  trial  ordered,  such  new  trial  not 
confined  to  the  issues  joiried,  but  further  mutter  allowed  to  be  pleaded. 
1  Rob.  Prac.  668. 

it  seems  to  the  court  here,  that  there  is  error  in  the  said 


judgment  in  this,  that  &c.  (state  the  error) :  Therefore  &c.  (as 
before).  And  this  court  proceeding  &c.  (as  before),  it  is  further 
considered  that  the  verdict  be  altogether  set  aside,  that  a  new 
trial  be  had  in  the  cause,  and  that  the  defendant  have  leave  to 
plead  the  matter  which  arose  after  his  original  plea,  and  was 
relied  upon  by  him  at  the  former  trial,  in  the  nature  of  a  plea 
puis  darrein  contijiuxmce.  And  the  cause  is  remanded  to  the  said 
county  court,  for  further  proceedings  to  be  had  therein. 


Writs  of  error  and  swpersedeas.  386 

56.  Judgment  on  motion  reversed  on  the  merits,  and  final  judgment 

entered.     1  Rob.  Prac.  590,  91. 

it  seems  to  the  court  here,  that  the  said  judgment  is  er- 
roneous, because  the  motion  is  not  supported  by  the  evidence  : 
Therefore  &c.  (as  before).  And  this  court  proceeding  &c.  (as 
before),  it  is  further  considered  that  the  plaintiff  in  the  said  mo- 
tion take  nothing  thereby,  and  that  the  defendant  in  the  motion 
go  thereof  without  day,  and  recover  against  the  plainlifT  his 
costs  by  him  about  his  defence  in  the  said  county  court  ex- 
pended. 

57.  Order  overndi?ig  motion  on  forthcoming  hand  hecause  of  sujrposed 
defect,  reversed,  and  case  remanded  to  county  couii;.  1  Rob.  Prac. 
601,  2. 

it  seems  to  the  court  here,  that  there  is  no  such  defect  in 

the  said  forthcoming  bond  as  the  said  county  court  supposed, 
and  that  the  order  of  the  said  county  court  overruling  the  mo- 
tion for  an  award  of  execution  on  the  said  bond,  because  of  such 
supposed  defect,  is  erroneous :  Therefore  it  is  considered  that 
the  said  order  be  reversed  and  annulled,  and  that  the  plaintiff 
recover  against  the  defendant  his  costs  by  him  expended  in  the 
prosecution  of  his  writ  aforesaid  here.  And  this  court  proceed- 
ing to  give  such  judgment  as  the  said  county  court  ought  to 
have  given,  it  is  further  considered  that  the  motion  to  quash  the 
said  bond,  because  of  the  supposed  defect  aforesaid,  be  over- 
ruled. But  inasmuch  as  the  defendant  in  the  motion  may  have 
other  objections,  which  were  not  brought  forward,  in  conse- 
quence of  the  opinion  of  the  county  court  being  in  his  favour  on 
the  point  first  made,  this  court  doth  not  now  proceed  to  give 
final  judgment  for  award  of  execution,  but  doth  order  that  the 
cause  be  remanded  to  the  said  county  court,  where  the  defen- 
dant in  the  motion  is  to  be  allowed  to  oppose  a  judgment  by 
proof  of  payments,  or  by  any  other  legal  objections  not  involved 
in  the  opinion  already  given. 

68.   Order  overruling  motian  on  forthcoming  bond  reversed,  and  final 
Judgment  entered. 

it  seems  to  the  court  here,  that  the  order  of  the  said 


county  court,  overruling  the  motion  for  an  award  of  execution  on 
the  said  bond,  is  erroneous:  Therefore  it  is  considered  &c.  (as 
last).  And  this  court  proceeding  &c.  (as  last),  it  is  further  con- 
sidered that  the  plaintiff  recover  against  the  defendants  $420. 
50  cents,  the  penalty  of  the  said  bond,  and  his  costs  by  him  in 
49 


386  Writs  of  error  and  supersedeas. 

the  said  county  court  expended. mercy  &c.  But  this  judg- 
ment is  to  be  discharged  by  the  payment  of  $ ,  with  in- 
terest &c. 

59.  Affirmance  of  judgment  in  ejectment. 

S.  M.  plaintiff'      ^      Upon  a  writ  of  supersedeas  to  a 

against  >judgment  of  the  court  of  hustings 

John  Doe  defendant.  )  for  the  city  of  Richmond  rendered 

on  the day  of ,  whereby  il  was  considered  that  the 

defendant  recover  against  the  plaintiff"  his  term  yet  to  come,  of 
and  in  one  certain  tenement  or  parcel  of  land,  lying  &c.  of  the 
demise  of  G.  F.  together  with  one  penny  damages,  and  his 
costs. 

This  day  came  the  parties  by  their  attorneys,  who  being 
heard,  and  the  transcript  of  the  record  of  the  judgment  afore- 
said being  seen  and  inspected,  it  seems  to  the  court  here,  that 
there  is  no  error  in  the  said  judgment:  Therefore  it  is  consi- 
dered that  the  same  be  affirmed,  and  that  the  defendant  recover 
against  the  plaintiff"  his  costs  by  him  about  his  defence  in  this 
court  expended.*  Whereupon  the  defendant  prays  a  writ,  to 
the  sheriff"  of  this  county  to  be  directed,  to  cause  him  to  have 
his  possession  of  his  term  aforesaid  yet  to  come  &c.  And  to 
him  it  is  granted,  returnable  &c. 

*  If,  pending  the  writ  of  supersedeas,  the  term  of  the  demise  has  ex- 
pired, an  entry  may  be  made,  according  to  Hunter  v.  Fairfax's  devisee, 
1  Munf.  238.  as  follows  : 

And  it  appearing  that  the  term  of  the  demise  mentioned  in 

the  declaration  has  expired,  on  the  motion  of  the ,  the 

court  doth  allow  him  to  amend  his  said  declaration  and  enlarge 
his  term,  by  striking  out  the  word  "  ten"  and  inserting  the 
words  "  twenty  three  ;"  and  the  declaration  being  thus  amended 

and  the  term  thus  enlarged,  the  prays  a  writ,  to  the 

sheriff"  of  this  county  to  be  directed,  to  cause  him  to  have  his 
possession  of  his  term  aforesaid  yet  to  come  &c.  And  to  him 
it  is  granted,  returnable  &c. 

60.  Judgment  for  plaintiff  on  complaint  for  uidawful  detainer  re- 
versed hy  circuit  court,  and  writ  of  restitution  awarded  to  restore 
possession.     1  Rob.  Prac.  499. 

C.  D.  plaintiff"      ^      Upon  a  writ  of  supersedeas   to  a 

against  >judgment  of  the  court  of 

A.  B.  defendant.  ;  county,  rendered  on  the day 


Writs  of  error  and  supersedeas.  387 

of ,  whereby  it  was  considered  that  the  defendant  reco- 
ver against  the  plaintiff  possession  of  a  certain  tenement  con- 
taining &c.  lying  &c. 

it  seems  to  the  court  here,  that  the  said  county  court 

erred  in  excluding  from  the  jury  the  evidence  mentioned  in  the 
said  bill  of  exceptions  :  Therefore  it  is  considered  that  the  judg- 
ment aforesaid  be  reversed  and  annulled,  and  that  the  plaintiff 
recover  against  the  defendant  his  costs  by  him  expended  in  the 
prosecution  of  his  writ  aforesaid  here,  and  be  restored  to  the 
possession  which  he  has  lost  by  occasion  of  the  said  judgment, 
for  which  purpose  a  writ  of  restitution  is  awarded  him.  And 
this  court  proceeding  &c.  (as  in  No.  47). 

61 .  Supersedeas  heard,  and  time  taken  to  consider. 

This  cause  was  this  day  heard  upon  the  transcript  of  the  re- 
cord of  the  judgment  aforesaid,  and  the  arguments  of  counsel; 
but  because  the  court  is  not  yet  advised  of  its  judgment  to  be 
given  in  the  premises,  time  is  taken  to  consider  thereof. 

62.  Supersedeas  partly  heai'd. 

This  cause  was  this  day  partly  heard  upon  &c.  (as  last,  to) 
counsel,  and  is  continued  till  to-morrow  for  a  further  hearing 
thereof. 

63.  SupersedecLs  fully  heard,  and  time  taken  to  consider. 

This  cause  was  this  day  fully  heard  upon  &c.  (as  in  No.  61). 

64.  Supersedeas  fully  considered,  and  judgment. 

This  day  came  the  parties  by  their  attorneys,  and  the  court, 
having  maturely  considered  the  transcript  of  the  record  of  the 
judgment  aforesaid,  and  the  arguments  in  this  cause,  is  of  opi- 
nion that  &c. 

65.  Fi.  fa.  on  a  judgment  of  circuit  co7irt  ajfrming  a  judgment  of 
county  court.     1  Rob.  Prac.  673. 

We  command  you  that  of  the  goods  and  chattels  of  C.  D. 

late  in  your  bailiwick,  you  cause  to  be  made  the  sum  of ,* 

with  interest  thereon  to  be  computed  after  the  rate  of  six  per 

centum  per  annum  from  the day  of till  payment, 

and  $ ,  which  A.  B.  lately  in  our  court  of  H.  county,  hath 

recovered  against  the  said  C.  D.  as  well  for  a  certain  debt  and 


388  Writs  of  error  and  supersedeas. 

the  interest  thereon,  as  for  his  costs  by  him  about  his  suit  in  that 
behalf  expended,  as  by  an  inspection  of  the  transcript  of  the 
record  of  the  said  judgnnent,  which  before  our  circuit  superior 
court  of  law  and  chancery  for  the  said  county,  by  reason  of  our 
writ  of  supersedeas  to  the  said  judgment,  was  lately  sent,  ap- 
peareth,  and  which  judgment,  in  our  said  circuit  superior  court, 

is  in  all  things  affirmed  ;  also  $- ,  which  to  the  said  A.  B.  in 

our  said  circuit  superior  court  were  adjudged  for  his  costs  by  him 
expended  in  defending  the  said  writ  of  supersedeas;  whereof  the 
said  C.  D.  is  convict,  as  appears  of  record. 

*  If  the  judgment  of  the  county  court  he  merely  for  costs,  say — the 

sum  of ,  which  A.  B.  lately  in  our  court  of  H.  county,  recovered 

against  the  said  C.  D.  for  his  costs  by  liira  expended  in  defending  a  cer- 
tain action  of at  the  suit  of  the  said  C.  D.  as  by  an  inspection 

&c. 

And  so,  in  every  case,  the  recovery  will  he  stated  according  to  the  na- 
ture of  the  action  and  the  judgment. 

If  the  judgment  was  against  tico,-  and  the  supersedeas  has  abated  as 
to  one  hy  his  death,  say — the  sum  of  &c.  which  A.  B.  lately  in  &/C. 
hath  recovered  against  the  said  C  D.  and  one  E.  F.  as  well  &.c.  as  by 
an  inspection  &c.  by  reason  of  our  writ  of  supersedeas  to  the  said  judg- 
ment, was  lately  sent,  appeareth,  upon  which  writ  of  supersedeas  an 
abatement  was  entered  as  to  the  said  E.  F.  by  his  death,  and  the  judg- 
ment aforesaid  as  to  the  said  C.  D.  is  in  all  things  affirmed;  also  &c. 

If  the  judgment  was  against  one,  loho  died  after  obtaining  the  super- 
sedeas, and  the  judgment  of  affirmance  is  against  his  executor,  say — 
that  of  the  goods  and  chattels  of  C.  D.  deceased,  late  in  your  baihwick, 
in  the  hands  of  E.  F.  executor  of  his  last  will  and  testament,  you  cause 
to  be  made  the  sum  of  &c.  which  A.  B.  lately  in  &c.  recovered  against 
the  said  C,  D.  deceased,  in  his  lifetime,  as  well  &,c.  as  by  an  inspection 
&c.  by  reason  of  our  writ  of  supersedeas  to  the'  said  judgment,  was 
lately  sent,  appeareth,  which  writ  o(  supersedeas  was  revived  in  the  name 
of  the  said  E.  F.  executor  as  aforesaid,  and  thereupon  it  was  considered 
by  our  said  circuit  superior  court,  that  the  said  judgment  be  affirmed, 
and  levied  df  the  goods  and  chattels  of  the  said  C  D.  deceased  in  the 
hands  of  the  said  E.  F.  to  be  administered  ;  also  &>c. 

If  the  judgment  was  recovered  by  one  who  died  after  the  supersedeas 
teas  obtained,  and  the  judgment  of  affirmance  is  in  favour  of  his  execu- 
tor, say — the  sum  of  &-c.  which  A.  B.  in  his  lifetime,  in  &lc.  recovered 
against  the  said  C  D.  as  well  &c.  as  by  an  inspection  &c.  by  reason  of 
our  writ  of  supersedeas  to  the  said  judgment,  was  lately  sent,  appeareth, 
which  writ  of  supersedeas  was  revived  against  E.  F.  executor  of  the  last 
will  and  testament  of  the  said  A.  B.  and  the  judgment  aforesaid  was 
afterwards,  in  our  said  circuit  superior  court,  in  all  things  affirmed. 


Writs  of  error  and  supersedeas.  3S9 

66.  Fi,  fa,  on  a  judgment  of  circtdt  superior  court  reversing  judg- 
ment  of  county  court.     1  Rob.  Prac.  673. 

the  sura  of ,  -which  to  A.  B.  lately  in  our  circuit 


superior  court  of  law  and  chancery  for  the  county  of  H.  were 
adjudged  for  his  costs  by  him  expended  in  suing  forth  and  pro- 
secuting our  writ  of  supersedeas  to  a  judgment  of  the  court  of 
hustings  for  the  city  of  R.  recovered  against  him  by  C.  D.  and 
which  judgment  in  our  said  circuit  superior  court  is  reversed  ; 

also  $ ,*  with  interest  &c.  which  the  said  A.  B.  in  our  said 

circuit  superior  court,  recovered  against  the  said  C.  D.  as  well 
for  his  damages  which  he  sustained  by  reason  of  the  said  C. 
D.^s  not  performing  a  certain  promise  and  assumption,  to  the 
said  A.  B.  by  the  said  C.  D.  made,  and  interest  thereupon,  as 
for  his  costs  by  him  about  his  suit  in  the  said  court  of  hustings 
expended  ;  whereof  &c. 

*  If,  in  proceeding  to  give  such  judgment  as  the  court  below  ought 
to  have  given,  the  circuit  court  merely  gives  judgment  for  costs  in  the 

court  below,  say — "  also   $ ,   which  the   said  A.  IB.  '\n  our  said 

circuit  superior  court,  recovered  against  the  said  C.  D.  for  his  costs  by 

him  expended  in  defending  a  certain  action  of at  the  suit  of  the 

said  A.  B." 

If  the  judgment  of  the  circuit  court  be  merely  for  the  costs  upon  the 
supersedeas,  then,  of  course,  all  will  be  omitted  from  the  word  also,  to 
thereof. 

67.  Distringas  and  fi.  fa.  on  a  judgment  of  circuit  court  afirming 
a  judgment  of  county  court  in  detinue.     1  Rob.  Prac.  673. 

As  in  p.  238.  No,  98.  to — or  of  such  of  them  as  may  not  be 
had,  as  by  an  inspection  of  the  transcript  of  the  record  of  the 
said  judgment,  which  before  our  circuit  superior  court  of  law 
and  chancery  for  the  said  county,  by  reason  of  our  writ  of  su- 
persedeas to  the  said  judgment,  was  lately  sent,  appeareth,  and 
which  said  judgment,  in  our  said  circuit  superior  court,  is  in 
all  things  affirmed.  We  also  command  you  that  of  the  goods 
and  chattels  &c.  (as  in  p.  239.  No.  99.  to)  which  to  the  said  A. 
B.  in  the  said  county  court  were  adjudged,  as  well  for  his  da- 
mages which  he  sustained  by  occasion  of  the  detention  of  the 
said  slaves,  as  for  his  costs  by  him  about  his  suit  in  that  behalf 

expended;  and  also  $ ,  which  to  the  said  A.  B.  in  our 

said  circuit  superior  court  were  adjudged  for  his  costs  by  him 
expended  in  defending  the  said  writ  of  supersedeas;  whereof 
the  said  C.  D.  {or,  the  said  C.  D.  executor  as  aforesaid — or,  ad- 
ministrator as  aforesaid)  is  convict,  as  appears  of  record.  And 
in  what  manner  you  shall  have  executed  this  our  command. 


390  Writs  of  eri'or  and  supersedeas, 

make  known  &c.  And  have  then  there  this  writ,  and  also  the 
said  money,  to  render  to  the  said  A.  B.  for  the  damages  and 
costs  aforesaid. 

68.  Writ  of  restitution  after  reversal  of  judgment  on  complaint  of 
unlawful  detainer i  under  which  possession  had  been  obtained,  1  Rob. 
Prac.  499. 

The  commonwealth  of  Virginia  to  the  sheriff  of  the  county 

of ,  greeting :    Whereas,  at  the  courthouse  of  the  said 

county,  on  &c.  (as  in  p.  196.  to)  whereupon  such  proceedings 
were  had  in  our  said  court,  that  by  the  judgment  of  our  said 
court  the  said  E.  F.  recovered  against  the  said  G.  H.  possession 
of  the  tenement  aforesaid,  and  his  costs  by  him  in  that  behalf 
expended,  and  a  writ  of  habere  facias  possessionem  was  awarded, 
to  cause  the  said  E.  F.  to  have  such  possession,  and  by  virtue 
of  the  said  writ  he  obtained  such  possession :  And  whereas  af- 
terwards a  writ  of  supersedeas  was  allowed  to  the  said  judgment, 
and  such  proceedings  were  had  upon  the  said  writ  o{  supersedeas 
in  our  circuit  superior  court  of  law  and  chancery  for  the  said 
county,  that  by  our  said  circuit  superior  court  it  was  considered 
that  the  judgment  aforesaid  should  be  reversed  and  annulled, 
and  that  the  said  G.  H.  should  be  restored  to  the  possession 
which  be  had  lost  by  reason  of  the  said  judgment,  for  which 
purpose  a  writ  of  restitution  was  awarded  him,  as  appears  of 
record  :  Therefore  we  command  you  that,  without  delay,  you 
cause  the  said  G.  H.  to  be  restored  to  the  possession  of  the  te- 
nement aforesaid.  And  in  what  manner  you  shall  execute  this 
writ,  make  known  &c.     And  have  then  there  this  writ. 

69.  Scire  facias  where  execution  has  not  issued  within  a  year  after 
the  affirmance,  by  circuit  court,  of  judgment  of  county  court. 

Whereas  G.  M.  at  a  court  held  for  the  said  county  of  H.  at  the 
courthouse  &c.  (as  in  p.  245.  No.  1.  to)  costs  by  him  about  his  suit 
in  that  behalf  expended ;  to  which  judgment  a  writ  of  superse- 
deas was  allowed  ;  and  at  a  circuit  superior  court  of  law  and 

chancery  held  for  the  said  county  on  the day  of , 

it  seemed  to  our  said  circuit  superior  court  that  there  was  no 
error  in  the  said  judgment,  and  it  was  therefore  considered  by 
our  said  circuit  superior  court  that  the  same  be  affirmed,  and 
that  the  said  G.  M.  recover  against   the  said  R.   W.  and  A. 

B.  $ for   his   costs  by  him   about  his   defence  of  the 

said  writ  of  supersedeas  expended  ;  whereof  the  said  R.  W.  and 
A.  B.  are  convicted,  as  by  the  record  thereof  in  our  said  circuit 
superior  court  manifestly  appears.     And  now,  on  behalf  of  the 


Writs  of  error  and  svpersedeas.  391 

said  G.  M.  it  is  said,  that  although  the  judgment  of  the  said 
county  court  be  affirmed  as  aforesaid,  yet  execution  of  the  debt, 
interest  and  costs  aforesaid  still  remains  to  be  made.  But  more 
than  a  year  has  passed  since  the  judgment  of  affirmance  by  our 
said  circuit  superior  court.  Therefore  &c.  (as  in  p.  245.  No.  1. 
to)  according  to  the  judgments  aforesaid.  And  have  then  there 
this  writ.     Witness  &c. 

70.  Scire  facias  against  heirs  and  terretenants,  to  have  execution  of  the 
lands  upon  a  judgment  of  circuit  court  ajflrming  judgment  of  court 
beloiv,  rendered  on  a  scire  facias. 

Whereas  T.  G.  in  his  lifetime,  at  a  court  of  hustings  held  for 

the  city  of  R.  the day  of ,  by  &c.  (as  in  p.  245. 

No.  1.  to)  costs  by  him  about  his  suit  in  that  behalf  expended. 
And  whereas,  at  a  court  of  hustings  held  for  the  said  city  the 

day  of ,  by  the  judgment  of  the  same  court  it  was 

considered  that  M.  W.  H.  executor  of  the  last  will  and  testa- 
ment of  the  said  T.  G.  deceased,  might  have  execution  against 

the  said for  the  debt,  interest  and  costs  aforesaid,  and 

also  for  $5.26  cents  for  his  costs  by  him  expended  in  suing 
forth  and  prosecuting  against  the  said our  writ  o^  scire  fa- 
cias ;  to  which  judgment  a  writ  of  supersedeas  was  allowed  ;  and 
at  a  circuit  superior  court  &c.  (as  last,  to)  be  affirmed,  and  that 
the  said  M.  TV.  H.  executor  as  aforesaid,  recover  against  the 

said his  costs  by  him  about  his  defence  of  the  said  writ 

of  supersedeas  expended  ;  whereof  the  said was  convicted, 

as  by  the  record  thereof  in  our  said  circuit  superior  court  mani- 
festly appears.     And  after  the  giving  of  the  said  last  mentioned 

judgment,  the  said  died,  leaving his  heirs,  as  we 

have  been  informed ;   and  we  are  further  informed  that  the  said 

was,  at  the  day  the  first  judgment  of  our  said  court  of 

hustings  was  rendered,  and  afterwards,  seized  &c.  (as  in  p.  248. 
No.  7.  to)  at  the  day  of  obtaining  the  said  first  judgment  of  our 
said  court  of  hustings,  or  at  any  time  afterwards,  &c.  (as  in  p. 
248.  No.  7.  to)  according  to  the  effect  of  the  several  judgments 
aforesaid.     And  have  &c. 

71.  Aivard  of  execution  upon  scire  facias  against  heirs  and  terre- 
tenants^  to  have  execution  of  the  lands  upon  a  judgment  of  circuit 
court  affirming  judgment  of  couH  below. 

This  day  came  the  parties  by  their  attorneys,  and  by  their 
consent  it  is  considered  by  the  court  that  the  plaintiff  may  have 

execution  against  the  defendants,  for  $ ,   with  interest 

thereon  &c.  the  debt  and  interest,  and  S  5.36  cents,  $  5.26  cents, 


392  Writs  of  error  and  supersedeas. 

and  $  5.86  cents,  the  costs,  in  the  writ  aforesaid  specified,  and 
also  that  the  plaintiff  recover  against  the  defendants  his  costs  by 
him  expended  in  suing  forth  and  prosecuting  this  writ;  to  be 
levied  of  the  lands  and  tenements  whereof  the  said  — ^ —  was 
seized  at  the  day  of  obtaining  the  judgment  in  the  said  writ 
first  mentioned,  or  at  any  time  af\er\vards. 

72.  Fi.  fa.  after  award  of  execution  upon  scire  facias  reneiving 

judgment  of  ajirmance. 

As  in  No.  65.  to  the  end,  and  then  sarj — and  also  $  20,  which 
to  the  said  A.  B.  lately  in  our  said  circuit  superior  court  were 
adjudged  &c.  (as  in  p.  270.  No.  62.)  and  whereupon  it  is  consi- 
dered by  our  said  circuit  superior  court  that  the  said  A.  B.  have 
execution  against  the  said  C.  D.  of  the  debt,  interest  and  costs 
aforesaid,  as  appears  also  of  record. 

73.  Fi.  fa.  after  award  of  executio?i  against  executor,  upon  scire 

facias  reviving  judgment  afirmed  against  decedent. 

that  of  the  goods  and  chattels  of  C.  D.  deceased,  late  in 

your  bailiwick,  in  the  hands  of  E.  F.  executor  of  his  last  will 
and  testament,  you  cause  to  be  made  the  sum  of  &c.  (as  in  No. 
65.  inserting  after  C.  D.  the  words  "  in  his  lifetime,"  and  con- 
tinuing to)  whereof  the  said  C.  D.  was  convict,  as  appears  of 

record ;  and  also   $ ,  which  to  the   said  A.  B.  lately  in 

our  said  circuit  superior  court,  were  adjudged  for  his  costs  by 
him  expended  in  suing  forth  and  prosecuting  against  the  said 
E.  F.  executor  as  aforesaid,  our  writ  oi  scire  facias ;  and  where- 
upon it  is  considered  by  our  said  circuit  superior  court  that  the 
said  A.  B.  have  execution  against  the  said  E.  F.  executor  as 
aforesaid,  of  the  debt,  interest  and  costs  aforesaid,  to  be  levied 
of  the  goods  and  chattels  of  the  said  C.  D.  deceased,  in  the 
hands  of  the  said  E.  F.  to  be  administered  ;  as  appears  also  of 
record. 

74.  Fi.  fa.  after  award  of  execution  in  favour  of  executor,  upon 
scire  facias  reviving  judgment  affirmed  in  decedent's  lifetime. 

As  in  No.  65.  using,  instead  of  "  which  A.  B.  lately  in  tfec.  hath  re- 
covered," the  words  "  which  A.  B.  in  his  lifetime  in  &c.  recovered," 
and  adding  in  a  subsequent  place,  after  A.  B.,  the  words  "  in  his  life- 
time."    After  the  words  "  as  appears  of  record,"  proceed  as   follows : 

"  also  $ ,  which  to  E.  F.  executor  of  the  last  will  and  testament 

of  the  said  A.  B.  deceased,  lately  in  our  said  circuit  superior  court 
were  adjudged  for  his  costs  by  him  expended  in  suing  forth  and  prose- 
cuting against  the  said  C.  D.  our  writ  of  scire  facias ;  and  whereupon 


Writs  of  error  and  supersedeas.  393 

it  is  considered  by  our  said  circuit  superior  court  that  the  said  E.  F. 
executor  as  aforesaid,  have  execution  against  the  said  C.  D.  of  the  debt,  , 
interest  and  costs  aforesaid,  as  appears  also  of  record." 

75.    Transcript  of  the  record  of  a  judgment  in  circuit  courts  in  a  suit 
removed  thither  hxj  ceniorari.     1  Rob.  Prac.  190.  654. 

Pleas  &c.  (according  to  the  usual  form). 

Be  it  remembered  that  heretofore,  to  wit,  at  a  circuit  superior 
court  of  law  and  chancer}'  held  for  the  said  county  of  H.  on  the 

day  of ,  came  &c.  (copying  the  order  awarding  the 

certiorari).- 

The  following  is  the  notice  of  which  a  copy  was  given  in 
writing  to  the  said  C.  D.  (Here  copy  it.  If  the  order  states 
that  notice  was  acknowledged,  or  that  the  opposite  party  ap- 
peared, the  notice  need  not  be  copied  in  the  record). 

Pursuant  to  the  order  of  the  said  circuit  superior  court,  a 

writ  of  certiorari  was  issued  on  the day  of ,  which, 

with  the  return  thereon,  is  in  these  words :  *'  The  common- 
wealth" &c. 

The  record  and  proceedings  referred  to  in  the  said  return  are 
in  these  words :  (here  insert  the  record). 

At  a  circuit  superior  court  of  law  and  chancery  held  for  the 
said  county  of  H.  on  the day  of ,  the  writ  of  cer- 
tiorari awarded  &c.  (copying  the  order  to  docket  cause  upon  re- 
turn of  certioiari). 

And  at  &c.  (copying  the  subsequent  proceedings  in  the  circuit 
court). 

76.   Transcript  of  the  record  of  a  judgment  in  circuit  courts  given 
on  a  supersedeas. 

Pleas  &c. 

Be  it  remembered  that  heretofore,  to  wit,  at  a  circuit  superior 
court  of  law  and  chancery  held  for  the  said  county  of  H.  on  the 

day  of ,  C.  D.  preferred  &c.  (copying  the  order  as 

in  No.  18.  to  the  words)  annexed  to  the  said  petition. 

The  said  petition,  certificate  of  counsel,  and  transcript  of  the 
record  are  in  the  words  following,  to  wit :  (here  copy  them). 

Whereupon  the  said  transcript  of  the  record  being  seen  and 
inspected,  the  court  &c.  (copying  the  residue  of  the  order,  as  in 
No.  19.) 

On  the day  of ,  the  following  bond  was  entered 

into  :  (here  copy  it). 

And  thereupon,  pursuant  to  the  said  order  of  the  said  circuit 

superior  court,  a  writ  of  supersedeas  was  issued  on  the  said 

50 


394  Writs  of  error  and  s^ipersedeas. 

day  of ,  which  writ  has  not  been  returned  {or,  which  writ, 

with  the  return  thereon,  is  in  these  words :  "  The  commen- 
wealth"  &c.) 

And  now  at  this  day,  to  wil,  at  a  circuit  superior  court  of  law 
and  chancery  held  for  the  said  county  of  H.  on  the  same  day 

and  year  first  herein  mentioned,  to  wit,  on  the day  of , 

(copy  the  judgment). 

77.   Writ  of  supersedeas  to  judgment  of  circuit  court.     1  Rob. 
Prac.  670,  71. 

Like  the  writ  of  supersedeas  to  a  judgment  of  a  county  or  corpora- 
tion court  (the  form  of  which  is  in  No.  22.)  omitting  the  words  "  he  the 
said  C.  D.  having  given  security  to  prosecute  with  effect,  and  if  the 
judgment  aforesaid  shall  be  affirmed,  to  pay  the  same,  and  all  such  da- 
mages and  costs  as  shall  be  awarded." 

{E?idorse)  This  writ  of  supersedeas  is  not  to  be  effectual  until 
the  withinnamed  C.  D.  or  some  responsible  person,  shall  enter 
into  bond  with  sufficient  security,  in  the  clerk's  office  of  the  cir- 
cuit superior  court  of  law  and  chancery  for  the  county  of , 

in  the  penalty  of  $ ,  conditioned  as  the  law  directs,  and 

a  certificate  of  the  due  execution  thereof  shall  be  endorsed  here- 
on by  the  clerk  of  the  said  court. 

78.  Bond  given  when  supersedeas  is  obtained  to  judgment  of  circuit 
court.     1  Rob.  Prac.  670,  71. 

Know  all  men  &c.  The  condition  of  the  above  obligation  is 
such,  that  whereas  the  clerk  of  the  court  of  appeals  has  issued 
a  writ  of  supersedeas  in  the   name  of  the  commonwealth,  to  the 

sheriff  of county  directed,  commanding  the  said  sheriff 

that  from  all  further  proceedings  on  a  judgment  of  the  circuit 
superior  court  of  law  and  chancery  for  the  county  of  H.  ren- 
dered on  the day  of ,  in  &c.  between  &c.  whereby 

&c.  (following  the  words  of  the  supersedeas)  he  should  altogether 
supersede,  but  on  the  said  writ  the  said  clerk  of  the  court  of  ap- 
peals has  endorsed  that  it  is  not  to  be  effectual  until  &c.  (follow- 
ing the  language  of  the  endorsement) :  Now  if  the  said  C.  D. 
his  executors  or  administrators,  shall  prosecute  the, said  writ 
with  effect,  or  shall  well  and  truly  pay  the  amount  of  the  judg- 
ment aforesaid  of  the  said  circuit  superior  court,  and  all  such 
costs  and  damages  as  shall  be  awarded,  in  case  the  said  judg- 
ment shall  be  affirmed,  then  the  above  obligation  is  to  be  void, 
otherwise  it  is  to  remain  in  full  force. 


Writs  of  error  and  supersedeas.  395 

79.  Reversal  of  judgment  of  circuit  courts  which  reversed  judgmetit  of 
county  court  on  complaint  of  unlawful  detainer ;  and  writ  of  re- 
restitution  awarded.     1  Rob.  Prac.  499, 

it  seems  to  the  court  that  the  said  circuit  superior  court 

erred  in  reversing  the  judgment  of  the  said  county  court : 
Therefore  it  is  considered  that  the  judgment  aforesaid  of  the 
said  circuit  superior  court  be  reversed  and  annulled,  and  that 
the  plaintiff  recover  against  the  defendant  his  costs  by  him  ex- 
pended in  the  prosecution  of  his  writ  aforesaid  here ;  and  if  the 
defendant  has,  under  the  judgment  of  the  said  circuit  superior 
court,  and  the  writ  of  restitution  thereby  awarded,  obtained 
possession  of  the  said  tenement,  that  the  plaintiff  be  restored  to 
the  possession  which  he  has  lost  by  occasion  of  the  said  judg- 
ment of  the  circuit  superior  court,  for  which  purpose  a  writ  of 
rereslitution  is  in  such  case  to  be  awarded  by  that  court.  And 
this  court  proceeding  to  give  such  judgment  as  the  said  circuit 
superior  court  ought  to  have  given,  it  is  further  considered  that 
the  judgment  of  the  said  county  court  be  affirmed,  and  that  the 
plaintiff  recover  against  the  defendant  his  costs  by  him  about 
his  defence  in  the  said  circuit  superior  court  expended.  Which 
is  ordered  to  be  certified  to  the  said  circuit  superior  court. 

80.  A/ier  circuit  court  has  reversed  ttvo  Judgments  of  county  court, 
both  judgments  of  circuit  court  reversed,  and  first  judgment  of 
county  court  ajirmed.     1  Rob.  Prac.  671. 

it  seems  to  the  court  that  the  said  circuit  superior  court 

erred  in  its  reversal  of  the  first  judgment  of  the  county  court : 
Therefore  it  is  considered  that  both  the  judgments  of  the  said 
circuit  superior  court,  and  all  the  proceedings  in  the  county 
court  subsequent  to  the  first  judgment  of  the  circuit  court,  be 
reversed  and  set  aside,  and  that  the  plaintiff  recover  against  the 
defendant  his  costs  by  him  expended  in  the  prosecution  of  his 
writ  aforesaid  here,  and  also  the  costs  by  him  expended,  both 
in  the  county  court  and  circuit  court,  subsequent  to  the  first 
judgment  of  the  said  circuit  court.  And  this  court  proceeding 
to  give  such  judgment  as  the  said  circuit  court  ought  to  have 
given  on  the  writ  of  supersedeas  to  the  first  judgment  of  the 
county  court,  it  is  further  considered  that  the  said  first  judgment 
of  the  county  court  be  affirmed,  and  that  the  plaintiff  here,  who 
was  defendant  in  the  said  writ  of  supersedeas  to  the  first  judg- 
ment of  the  county  court,  recover  against  the  defendant  here  his 
costs  by  him  about  his  defence  of  that  writ  expended.  Which 
is  ordered  to  be  certified  to  the  said  circuit  superior  court. 


396  Writs  of  error  and  supersedeas. 

81.  Decision  of  appellate  court  received  by  clerk  of  court  below  during 
the  session  of  the  court,  and  judgment  entered  ptirsuant  thereto. 
1  Rob.  Prac.  672,  3. 

A  copy  of  the  decision  of  the  court  of  appeals  in  this  cause, 
certified  by  the  clerk  of  that  court,  was  this  day  produced  to  the 
court,  and  is  in  these  words  :  (here  insert  it). 

In  pursuance  whereof,  it  is  considered  that  the  judgment  afore- 
said of  this  court  be  affirmed,  and  that  the  plaintiff  {or,  the  said 
A.  B.)  recover  against  the  defendant  {or,  the  said  C.  D.)  his 
costs  by  him  about  his  defence  in  the  court  of  appeals  expended. 
Or,  if  the  judgment  be  reversed — 

In  pursuance  whereof,  it  is  considered  that  &c.  (following,  as 
near  as  may  be,  the  decision  of  the  appellate  court). 

82.  Decision  of  court  of  appeals  received  by  cleric  of  circuit  court  in 

vacation,  and  entry  thereof.     1  Rob.  Prac.  672,  3. 

In  the  office  of  the  circuit  superior  court  of  law  and  chancery 
for  the  county  of -,  the day  of . 

A  copy  of  the  decision  of  the  court  of  appeals  in  this  cause, 
certified  by  the  clerk  of  that  court,  was  this  day  received  by  the 
clerk  of  the  said  circuit  superior  court,  in  the  vacation  of  the 
court;  and  the  same  being  now  entered  of  record,  according  to 
the  statute,  at  the  end  of  the  proceedings  of  the  preceding  term, 
is  in  the  words  follow-ing  to  wit :  (here  insert  it). 

83.  After  affirmance  of  judgment  in  detinue,  proceedings  to  ascertain 
the  value  of  the  hires  of  the  slave  recovered,  which  have  accrued 
si?ice  the  verdict  and  judgment  given  therefor.   1  Rob.  Prac.  673, 4. 

The  plaintiff  gives  the  court  to  understand  that  he  now  seeks 
a  recovery  from  the  defendant  of  the  value  of  the  hires  of  the 
slave  recovered  in  this  action,  which  have  accrued  from  the 
date  of  the  verdict  upon  which  the  judgment  of  this  court  was 
rendered  ;  and  it  appears  that  the  defendant  has  had  four  weeks 
notice  of  the  motion  now  made  by  the  said  plaintiff  for  a  writ 
of  enquiry.  Whereupon  it  is  ordered  that  the  value  of  the  said 
hires  be  ascertained  by  a  jury.  And  thereupon  came  a  jury, 
to  wit,  A.  B.  &c.  who  being  sworn  diligently  to  enquire  and  as- 
certain the  value  of  the  said  hires,  upon  their  oath  do  say  that 
they  ascertain  the  value  of  the  same  to  be  $ — ■ .  There- 
fore it  is  considered  by  the  court  that  the  plaintiff  recover  against 
the  defendant  the  said  sum  of  $ ,  and  the  costs  of  exe- 
cuting this  writ  of  enquiry,  including  an  attorney's  fee. 


Writs  of  error  and  supmsedeas.  397 

84.  After  judgment  on  complaint  for  unlawful  entry  or  detainer  is 
reversed,  and  case  remanded,  new  Jury  impannelled.  1  Rob.  Prac. 
500. 

This  clay  came  the  parties  by  their  attorneys,  and  thereupon 
a  jury  of  freeholders  was  impannelled  for  the  new  trial  required 
in  this  cause,  in  the  manner  in  which  other  juries  are  impan- 
nelled in  this  court,  and  charged  on  oath  in  the  manner  prescri- 
bed by  the  statute ;  and  the  court  admitted  before  them  &c.  (as 
in  p.  i96.  No.  5). 

85.  Fi.  fa.  after  afjirmance  by  court  of  appeals  of  judgment  of 
circuit  court.     1  Rob.  Prac.  673. 

As  in  No.  65.  to — which  A.  B.  lately  in  our  circuit  superior 
court  of  law  and  chancery  for  the  county  of  H.  hath  recovered 
against  the  said  C.  D.  as  well  for  a  certain  debt  and  the  interest 
thereon,  as  for  his  costs  by  him  about  his  suit  in  that  behalf  ex- 
pended ;  also  $  — : — ,  which  to  the  said  A.  B.  in  the  same  court, 
in  pursuance  of  the  judgment  of  affirmance  of  our  court  of  ap- 
peals, given  upon  a  writ  of  supersedeas  to  the  judgment  aforesaid 
of  our  said  circuit  superior  court,  were  adjudged  for  his  costs 
by  him  expended  in  defending  the  said  writ  of  supersedeas; 
whereof  the  said  C.  D.  is  convict,  as  appears  of  record ;  and 
that  &c. 

If  the  judgment  of  the  circuit  court  he  merely  for  costs,  say — the 

sum  of  ^ ,  which  A.  B.  lately  in  our  circuit  superior  court  of  law 

and  chancery  for  the  county  of  H.  recovered  against  the  said  C.  D.  for 

his  costs  by  him  expended  in  defending  a  certain   action  of at 

the  suit  of  the  said  C.  D. ;  also  &c. 

And  so  in  every  case  the  recovery  will  be  stated  according  to  the  nature 
of  the  action  and  the  judgment. 

If  the  judgment  was  against  two,  and  the  supersedeas  abated  as  to  one 
by  his  death,  say — the  sum  of  &c.  which  A.  B.  lately  in  &c.  hath  re- 
covered against  the  said  C.  D.  and  one  E.  F.  as  well  &c. ;  also  $ , 

which  to  the  said  A.  B.  in  the  same  court,  in  pursuance  of  the  judg- 
ment of  affirmance  of  our  court  of  appeals,  given  upon  a  writ  of  super- 
sedeas to  the  judgment  aforesaid  of  our  said  circuit  superior  court 
(which  writ  of  supersedeas  was  abated  as  to  the  said  E.  F.  by  his  death) 
were  adjudged  for  the  costs  by  the  said  A.  B.  expended  in  defending  the 
said  writ  of  supersedeas. 

If  the  judgment  loas  against  one,  who  died  after  obtaining  the  super- 
sedeas, and  the  judgment  of  affirmance  is  against  his  executor,  say — that 
of  the  goods  and  chattels  of  C  D.  deceased,  late  in  your  bailiwick,  in 
the  hands  of  E.  F.  executor  of  his  last  will  and  testament,  you  cause  to 
be  made  the  sum  of  &c.  which  A.  B.  lately  in  &c.  recovered  against 
the  said  C.  D.  deceased,  in  his  lifetime,  as  well  &/C.  to  which  judgment 


39S  Writs  of  error  and  supersedeas* 

a  writ  of  supersedeas  was  allowed,  and  the  said  C.  D.  dying  pending 
that  writ,  the  same  was  revived  in  the  name  of  the  said  E.  F.  executor 
as  aforesaid,  and  afterwards  it  was  considered  by  our  court  of  appeals 
that  the  judgment  aforesaid  be  affirmed,  and  levied  of  the  goods  and 
chattels  of  the  said  C.  D.  deceased  in  the  hands  of  the  said  E.  F.  to  be 

administered ;  also  $ ,  which  to  the  said  A.  B.  in  pursuance  of  the 

said  judgment  of  affirmance  of  our  court  of  appeals,  were  adjudged  for 
his  costs  by  him  expended  in  defending  the  said  writ  of  supersedeas. 

If  the  judgment  was  by  one,  loho  died  after  the  supersedeas  was  ob- 
tained, and  the  judgment  of  affirmance  is  in  favour  of  his  executor, 
say — the  sum  of  &c.  which  ^.  B.  in  his  lifetime,  in  &lc.  recovered  against 
the  said  C  D.  as  well  &lc.  to  which  judgment  a  writ  of  supersedeas  was 
allowed,  and  the  said  A,  B.  dying  pending  that  writ,  the  same  was  re- 
vived against  the  said  E.  F.  executor  as  aforesaid,  and  afterwards  it  was 
considered  by  our  court  of  appeals  that  the  judgment  aforesaid  be  af- 
firmed ;   also  $ ,  which  to  the  said  E.  F.  executor  as  aforesaid, 

in  pursuance  of  the  said  judgment  of  affirmance  of  our  court  of  ap- 
peals, were  adjudged  for  the  costs  expended  in  defending  the  said  writ  of 
supersedeas. 

If  the  judgment  was  against  two  or  more,  and  the  supersedeas  only 
by  one,  say — that  of  the  goods  and  chattels  of  C.  D.  and  E.  F.  late 
&.C.  which  A.  B.  lately  in  &c.  hath  recovered  against  the  said  C.  D, 
and  E.  F.  as  well  &c.  as  by  &-c.  which  before  &c.  by  reason  of  a  writ 
of  supersedeas  to  the  said  judgment,  allowed  on  the  petition  of  the  said 
E.  F.  was  lately  sent,  appeareth,  and  which  &c. ;  also  of  the  goods  and 
chattels   of  the   said  E.  F.  in  your  bailiwick,  you   cause  to  be  made 

$ ,  which  to  &LC. ;  whereof  the  said  C.  D.  and  E.  F.  are  convict, 

as  appears  of  record. 

86.  Fi.  fa.  after  afirmance,  by  court  of  appeals,  of  judgment  of  cir- 

cuit court  which  afjirmed  judgment  of  county  court. 

As  in  No.  65.  to — expended  in  defending  the  said  writ  o^  super- 
sedeas ;  also  % ,  which  to  the  said  A.  B.  in  our  said  circuit 

superior  court,  in  pursuance  &c.  (as  in  No.  85.  to)  the  said  writ 
of  supersedeas  last  mentioned;  whereof  the  said  C.  D.  is  con- 
vict &c. 

87.  jP*.  fa.  for  costs,  after  aff,rmance,  by  court  of  appeals,  of  judg- 

ment of  circuit  court  which  revefsed  order  of  county  court. 

that  of  the  goods  and  chattels  of  C.  D.  late  in  your 

bailiwick,  you  cause  to  be  made  the  sum  of  $ ,  which 

A.  B.  lately  in  our  circuit  superior  court  of  IgAv  and  chancery 
for  the  county  of  H.  recovered  against  the  sara  C.  D.  as  well 
for  his  costs  by  him  expended  in  suing  forth  and  prosecuting 
our  writ  of  supersedeas  to  a  certain  order  made  by  the  court  of 
the  said  county,  on  the  motion  of  the  said  A.  B.  which  order, 
in  our  said  circuit  superior  court,  is  reversed,  as  for  his  costs  by 


Writs  of  error  and  supersedeas,  399 

him  about  his  defence  of  the  said  motion  in  the  said  county 
court  expended  ;  also  $ ,  which  to  the  said  A.  B.  in  pur- 
suance of  the  judgment  of  our  court  of  appeals,  affirming  the 
judgment  of  our  said  circuit  superior  court,  to  which  a  writ  of 
supersedeas  was  allowed  on  the  petition  of  the  said  C.  D.,  were 
adjudged  for  the  costs  by  the  said  A.  B.  expended  in  defending 
the  said  writ  of  supersedeas;  whereof  &c. 

88.  Fi.  fa.  for  costs  incurred  in  court  of  appeals^  after  reversal 
hy  that  court  of  judgment  of  circuit  court. 

that  of  the  goods  and  chattels  of  C.  D.  late  in  your  bai- 
liwick, you  cause  to  be  made  the  sum  of  $ ,  which  A.  B. 

lately  in  our  circuit  superior  court  of  law  and  chancery  for  the 
county  of  H.  in  pursuance  of  the  judgment  of  our  court  of  ap- 
peals, given  on  a  writ  of  supersedeas  allowed  on  the  petition  of 
the  said  A.  B.  to  a  judgment  of  our  circuit  superior  court,  and 
which  judgment  is,  in  our  court  of  appeals,  reversed,  were  ad- 
judged for  the  costs  by  the  said  A.  B.  expended  in  suing  forth 
and  prosecuting  the  said  writ  of  supersedeas. 

89.  Fi.  fa.  after  judgment  of  court  of  appeals,  reversing  judgment 
of  circuit  court  which  reversed  judgment  of  county  court,  and  af- 
firming the  judgment  of  county  court. 

As  in  No.  65.  to — was  lately  sent,  appeareth,  upon  which 
writ  o^  supersedeas  it  was  considered  by  our  circuit  superior  court 
of  law  and  chancery  for  the  said  county,  that  the  said  judgment 
be  reversed  and  annulled ;  whereupon  a  writ  of  supersedeas  was 
allowed  to  the  judgment  of  our  said  circuit  superior  court,  and 
by  our  court  of  appeals  it  was  considered  that  the  judgment  of 
the  said  circuit  superior  court  be  reversed,  and  the  judgment  of 

the  said  county  court  affirmed  ;  also  $ ,  which  to  the  said  A. 

B.  in  our  said  circuit  superior  court,  in  pursuance  of  the  judg- 
ment of  the  court  of  appeals,  were  adjudged  for  his  costs  by 
him  expended  in  defending  the  said  writ  of  supersedeas  to  the 
judgment  of  the  county  court,  and  in  prosecuting  the  said  writ 
o{  supersedeas  to  the  judgment  of  the  circuit  superior  court; 
whereof  the  said  C.  D.  is  convict  &c. 

90.  Writ  of  rerestitution  after  reversal  of  judgment  of  circuit  court, 
which  rever seer  judgment  of  county  court  on  complaint  of  unlawful 
detainer.     1  Rob.  Prac.  499. 

As  in  No.  68.  to — for  which  purpose  a  writ  of  restitution  was 
awarded  him  ;  and  whereas  afterwards  a  writ  oi supersedeas  was 


400  Writs  of  error  and  supersedeas, 

allowed  to  the  judgment  of  our  said  circuit  superior  court,  and 
such  proceedings  were  had  upon  the  said  last  mentioned  writ  of 
supersedeas  in  our  court  of  appeals,  that  by  our  said  court  of  ap- 
peals it  was  considered  that  the  judgment  aforesaid  of  the  said 
circuit  superior  court  should  be  reversed  and  annulled,  and  if 
the  said  G.  H.  had,  under  the  judgment  of  the  said  circuit  su- 
perior court,  and  the  writ  of  restitution  thereby  awarded,  ob- 
tained possession  of  the  said  tenement,  that  the  said  E.  F. 
should  be  restored  to  the  possession  which  he  had  lost  by  occa- 
sion of  the  said  judgment  of  the  circuit  superior  court,  for 
which  purpose  a  writ  of  rerestitution  was  in  such  case  to  be 
awarded  by  that  court ;  as  appears  by  a  copy  of  the  decision  of 
the  court  of  appeals,  certified  by  the  clerk  thereof,  and  trans- 
mitted to  the  clerk  of  our  said  circuit  superior  court :  Therefore 
we  command  you,  in  case  the  said  G.  H.  has,  under  the  judg- 
ment of  the  said  circuit  superior  court,  and  the  writ  of  restitu- 
tion thereby  awarded,  obtained  possession  of  the  said  tenement, 
that  without  delay  you  cause  the  said  E.  F.  to  be  restored  to  the 
possession  thereof.  And  in  what  manner  you  shall  execute  this 
writ,  make  known  &c. 

91.  Scire  facias  upon  death  of  plaintiff  or  defendant,  to  have  execu- 
tion for  or  against  executor  or  administrator,  upon  a  judgment  of 
circuit  court  which  has  been  affirmed  by  the  court  of  appeals. 

As  in  p.  245.  No.  1.  to — costs  by  him  about  his  suit  in  that  be- 
half expended  ;  to  which  judgment  a  writ  of  supersedeas  was  al- 
lowed on  the  petition  of  the  said ,  and  at  a  court  of  ap- 
peals held  at  the  capitol  in  the  city  of  R.  on  the  day  of 

,  it  seemed  to  our  said  court  of  appeals  that  there  was  no 

error  in  the  said  judgment,  and  by  the  said  court  it  was  consi- 
dered that  the  same  be  affirmed,  and  that  the  said  ■  ■  should 
recover  against  the  said his  costs  by  him  about  his  de- 
fence in  the  said  court  of  appeals  expended,  which  costs  amount 
to  $ ;  and  at  a  circuit  superior  court  of  law  and  chan- 
cery held  for  the  said  county  of  H.  on  the day  of , 

a  copy  of  the  decision  of  the  court  of  appeals,  certified  by  the 
clerk  of  that  court,  was  produced  to  the  said  circuit  superior 
court,  and  in  pursuance  thereof  it  was  considered  by  the  said 
circuit  superior  court  that  its  judgment  aforesaid  be  affirmed, 

and  that  the  said recover  against  the  said his  costs  by 

him  about  his  defence  in  the  said  court  of  appeals  expended  ; 
{or — and  in  the  office  of  the  said  circuit  superior  court  of  law 

and  chancery  for  the  county  of  H.  the day  of ,  a 

copy  of  the  said  decision  of  the  court  of  appeals,  certified  by 
the  clerk  of  that  court,  was  received  by  the  clerk  of  the  said 


Writs  of  error  a7id  supersedeas.  401 

circuit  superior  court,  in  the  vacation  of  the  court,  and  the  same 
was  duly  entered  of  record,  according  to  the  statute,  at  the  end 
of  the  proceedings  of  the  preceding  term) ;  whereof  the  said 
was  convicted,  as  by  the  record  thereof  manifestly  ap- 
pears.    And  whereas  afterwards  the  said died,  having 

&c.  (as  in  p.  245.  No.  2.  or  p.  246.  No.  3.)  And  now  on  behalf 
&c.  (as  in  same)  it  is  said,  that  although  such  judgments  be 
given  as  aforesaid,  yet  &c.  (as  in  same,  substituting  merely  for 
"judgment,"  where  it  occurs  in  No.  2.  the  word  "judgments.") 

92.  Scire  facias  upon  death  of  plaintiff  or  defendant,  to  have  execu- 
tion for  or  against  executor  or  administrator,  after  affirmance,  by 
court  of  appcids,  of  judgment  of  circuit  court  which  affrmed  judg- 
ment of  county  court. 

As  in  No.  69.  to — defence  of  the  said  writ  of  supersedeas  ex- 
pended ;  to  which  judgment  of  our  circuit  superior  court  a  writ 

of  supersedeas  was  allowed  on  the  petition  of  the  said -, 

and  at  a  court  of  appeals  held  at  the  capitol  in  the  city  of  i2.  on 

the day  of ,  it  seemed  to  our  said  court  of  appeals 

that  there  was  no  error  in  the  said  judgment  of  our  circuit  su- 
perior court,  and  by  our  court  of  appeals  it  was  considered  &c. 
(as  last). 

93.  Fi.  fa.  after  award  of  execution  on  scire  facias  reviving,  in 
name  of  executor  or  administrator,  a  judgment  of  circuit  court  which 
has  been  affirmed  in  the  court  of  appedls. 

As  in  No.  85.  to — whereof  the   said    C.   D.   was   convict, 

as  appears  of  record  ;  and  also   $ ,  which    to  , 

executor  of  the  last  will  and  testament  {or,  administrator  of  the 
personal  estate)  of  the  said  C.  D.  deceased,  in  the  same  circuit 
superior  court  were  adjudged  for  his  costs  by  him  expended  in 

suing  forth  and  prosecuting  against  the  said our  writ  of 

scire  facias ;  and  whereupon  it  is  considered  by  our  said  court 

that  the  said ,  executor  {or,  administrator)  as  aforesaid, 

have  execution  against  the  said  C.  D.  of  the  debt  {or,  damages) 
interest  and  costs  aforesaid ;  whereof  he  is  also  convict,  as  ap- 
pears of  record. 

51 


402  Declarations. 

CHAPTER  XXXVI. 

DECLARATIONS. 


I.    IN    ACTIONS    GENERALLY. 

It  is  not  deemed  necessary  to  repeat  here  what  is  said  in  1  Rob.  Prac. 
141  to  156.  Some  additional  cases,  upon  points  applicable  to  declara- 
tions generally,  will  however  be  referred  to. 

Names  of  parties. — In  Davison  S^c.  v.  Savage,  6  Taunt.  121.  1  Eng. 
Com.  Law  Rep.  333.  the  declaration  stated  that  James  Savage  was  at- 
tached to  answer  four  persons  named  of  a  plea  of  trespass,  and  thereupon 
the  said  plaintiff's  complained  for  that  Me  said  defendant  &yC.  (describing 
the  plaintiffs  and  defendant  throughout  the  residue  of  the  declaration  no 
otherwise  than  by  the  phrase  "  the  said  plaintiffs"  and  "  the  said  defen- 
dant"). The  defendant  demurred  specially,  and  in  his  assignment  of  the 
cause  as  well  as  in  the  argument  insisted  that  upon  every  occurrence  of 
the  parties  they  ought  to  be  described  by  their  names.  But  the  court 
intimated  a  decided  opinion  that  the  words  "plaintiffs"  and  "defen- 
dant" were  a  sufficient  description. 

The  same  cause  of  demurrer  was  assigned  in  Stevenson  v.  Hunter,  6 
Taunt.  40G.  1  Eng.  Com.  Law  Rep.  428.  But  the  counsel  who  was  to 
have  argued  in  support  of  the  demurrer,  admitted  that  after  the  intima- 
tion given  by  the  court  in  Davison  v.  Savage  he  could  not  maintain  it. 
And  Gibbs,  C.  J.  said  it  would  not  be  proper  to  permit  the  point  to  be 
argued. 

Statement  of  time. — The  time  is  usually  stated  under  a  scilicet; 
and  this  scilicet  is  often  rejected  when  it  makes  nonsense  or  is  repug- 
nant. In  Bynner  v.  Russell,  1  Bingh.  23.  8  Eng.  Com.  Law  Rep.  230. 
the  action  was  on  a  bill  of  exchange ;  and  the  declaration,  after  stating 
the  delivery  of  the  bill  to  the  plaintiff,  averred  that  "  afterwards,  and 
when  the  said  bill  of  exchange  became  due  and  payable  according  to 
the  tenour  and  effect  thereof,  to  wit,  on  the  31st  day  of  March  1822,  to 
wit,  at  &,c.  the  said  bill  of  exchange  was  in  due  manner  and  according  to 
the  usage  and  custom  of  merchants,  presented  and  shewn  for  payment." 
The  defendant  demurred  specially,  assigning  for  cause  that  the  31st 
March  1822  was  a  sunday  :  and  therefore  the  bill  ought  not  to  have  been 
presented  on  that  day,  but  on  the  day  before.  But  the  court  held,  that 
the  day  was  immaterial,  being  specified  under  a  to  icit,  and  in  an  aver- 
ment that  the  bill  was  presented  when  it  became  due  and  payable. 

The  authority  of  the  foregoing  case  governed  the  decision  of  the 
court  of  appeals  in  Jackson's  adm'z  v.  Henderson  £(•€.  3  Leigh  196. 
There  were  six  special  counts  which,  after  setting  out  the  bill  of  exchange 
as  bearing  date  the  26th  June  1816,  and  payable  180  days  after  date,  al- 
leged that  "  afterwards,  when  the  said  bill  became  due  and  payable  ac- 


Declarations.  403 

cording  to  the  tenour  and  effect  thereof,  to  wit,  on  the  27th  December 
1816,  at  &c."  the  bill  was  presented.  Upon  counting,  it  was  found  that 
the  27th  December  1816,  was  the  fourth  day  after  the  expiration  of  the 
180  days.  The  court  of  appeals  rejected  the  scilicet,  and  considered 
the  declaration  as  stating  the  case  of  a  presentment,  "  when  the  bill  be- 
came due  and  payable." 

There  is  a  material  difference  between  allegations  which  are  descrip- 
tive and  allegations  containing  no  matter  of  description.  In  this  latter 
case,  although  the  fact  be  alleged  as  of  one  time,  and  the  •  proof  is  of 
another,  yet  the  repugnancy  is  immaterial.  The  allegation  is  not  con- 
sidered as  a  specific  allegation  of  time.  It  is  taken  only  as  a  substan- 
tial allegation  of  a  particular  fact ;  and  it  is  sufficient  if  there  be  such 
proof  as,  in  substance,  supports  the  allegation.  Purcell  v.  Macnamara, 
9  East  157.  was  an  action  on  the  case  for  a  malicious  prosecution ;  and 
the  declaration,  after  stating  that  on  a  certain  day,  the  defendant  indicted 
the  plaintiff  for  perjury,  alleged  that  the  defendant  "prosecuted  the  said 
indictment  against  the  plaintiff  until  afterwards,  to  wit,  on  the  morrow 
of  the  holy  Triniti/"  in  &c.  the  plaintiff  was  acquitted.  At  the  trial  the 
copy  of  the  record  of  the  indictment  being  given  in  evidence,  it  appeared 
that  the  trial  and  acquittal  took  place  "  on  tuesday  next  after  the  end  of 
Easter  term  ;"  and  the  variance  was  objected  to  as  fatal.  The  court  of 
king's  bench  considering  the  substance  of  the  allegation  to  be  that  the 
plaintiff  was  acquitted,  held  that  to  support  the  allegation  it  was  suffi- 
cient to  shew  that  the  acquittal  took  place  before  the  action  was  brought. 
The  precise  day  of  the  acquittal  was  unimportant. 

The  decision  of  the  court  of  king's  bench  in  Purcell  v.  3Iacnamara, 
was  followed  by  the  court  of  appeals  in  Mowry  v.  Miller,  3  Leigh  561. 
In  this  last  case,  the  declaration  alleged  that  "  afterwards,  to  wit,  on  the 
7th  of  October  1825,"  the  plaintiff  was  acquitted,  and  the  record  pro- 
duced at  the  trial  shewed  that  the  acquittal  was  on  the  7th  of  November 
1825.     The  variance  was  considered  immaterial. 

The  decision  in  Purcell  v.  Macnamara  has  been  also  approved  by  the 
court  of  king's  bench  in  the  more  recent  case  of  Phillips  v.  Shaw,  4  Barn. 
&i.  Aid.  435. 5  id.  964.  6  Eng.  Com.  Law  Rep.  477.  7  id.  318.  The  decla- 
ration in  the  latter  case  stated  that  the  defendant  undertook  to  indemnify 
the  plaintiff  as  bail  in  a  suit  of  Paige  v.  Pinnock,  and  alleged  that  after- 
wards, to  wit,  "  in  Michaelmas  term,  58  Geo.  3."  judgment  was  recovered 
in  the  said  suit.  At  the  trial  it  appeared  by  the  record  that  the  judg- 
ment was  obtained  in  Hilary  term,  58  Geo.  3.  ;  and  the  variance  was 
objected  as  fatal.  But  the  court  held  the  substantial  matter  to  be  that 
before  the  action  was  brought,  judgment  had  been  recovered  ;  and  con- 
sidered it  immaterial  at  what  particular  time  that  judgment  was  obtained. 

In  Taylor's  admW  v.  The  Bank  of  Alexandria,  5  Leigh  471.  the  ma- 
terial and  substantive  part  of  the  allegation  was,  that  the  charter  of  the 
bank  was  continued  by  certain  acts  of  congress  to  that  effect  and  for 
that  purpose  passed  ;  and  then  there  came  the  videlicet,  "  that  is  to  say, 
the  act  of  congress  passed  the  15th  of  February  1811,  entitled  &,c." 
The  reading  of  the  act  was  objected  to  at  the  trial  because  it  was  passed 
the  15th  of  February  1810  and  not  the  15th  of  February  1811.  As  the 
whole  of  the  recital  was  under  a  videlicet,  exactness  as  to  the  day  was 
held  immaterial. 


404  Declarations, 

Where  a  corporation  sues,  what  must  be  alleged. — It  is  not 
to  be  inferred  from  the  preceding  case,  that  where  a  corporation  sues,  it 
is  necessary  to  allege  in  the  declaration,  the  charter  of  incorporation  or 
to  make  an  averment  that  the  corporation  has  a  legal  right  to  sue  in  the 
name  which  it  uses.  See  Rees  v.  Conococheague  Bank,  5  Rand.  326. 
Opn.  of  Carr,  J.  in  Grays  v.  Turnpike  company,  4  Rand.  579.  Lithgow 
V.  Com.  2  Va.  Cas.  305. 

In  the  very  case  of  Taylor's  admW  v.  The  Bank  of  Alexandria,  there 
was  a  general  demurrer  to  the  declaration  of  the  bank,  and  Tucker,  pre- 
sident, in  delivering  the  opinion  of  the  court,  said,  "  If  the  defect  for 
which  the  defendant  demurred  was  any  want  of  form  in  pleading  the 
acts  of  congress  for  the  continuance  of  the  corporate  powers  of  the 
bank,  two  answers  present  themselves:  1.  That  it  was  not  necessary  to 
set  forth  in  the  declaration  how  the  company  was  incorporated  but  it 
would  have  been  sufficient  for  the  plaintiffs  on  the  general  issue  to  prove 
their  incorporation ;  Grays  v.  Turnpike  company,  4  Rand.  578.  follow- 
ing the  long  established  principles  of  the  english  courts :  2.  Even  if  it 
had  been  necessary,  the  fact  of  the  incorporation  and  the  continuance 
of  the  charter  is  alleged  substantially,  and,  though  the  allegation  be  in- 
formal, the  defendant  could  not,  upon  his  general  demurrer,  take  advan- 
tage of  want  of  form." 

In  New  York,  it  appears  to  be  considered  proper  for  the  plaintiffs  to 
aver  in  their  declaration,  pursuant  to  the  statute  2  R.  S.  459.  §  13.  that 
they  are  a  corporation,  setting  forth  the  title  of  the  act  creating  the  cor- 
poration and  the  date  of  its  passage;  and  then  there  may  be  a  plea  of 
nul  tiel  corporation  concluding  to  the  country.  Onondaga  County  Bank 
V.  Carr,  17  Wend.  443. 

The  by-laws  of  all  corporate  bodies,  including  all  municipal  corpora- 
tions, must  be  set  forth  in  pleading  when  they  are  sought  to  be  enforced 
by  an  action  or  are  set  up  as  protection  on  the  record.  In  Marker  v. 
The  Mayor  S^c.  of  New  York,  17  Wend.  199.  the  mayor,  aldermen  and 
commonalty  of  the  city  of  Netc  York  declared  against  Marker  for  that 
he,  being  an  inhabitant  of  the  city,  suffered  and  permitted  two  of  his 
carts  to  be  driven  without  having  his  name  printed  thereon,  contrary  to 
the  3d  section  of  title  7th  of  a  law  of  the  mayor,  aldermen  and  common- 
alty of  the  city  of  New  York  to  regulate  carts  and  cartmen.  It  was 
insisted  that  the  declaration  was  insufficient  because  the  ordinance  of 
the  corporation,  under  which  the  suit  was  brought,  was  not  set  out.  And 
the  court  held  the  objection  to  be  well  taken,  saying  it  could  not  judi- 
cially notice  these  cart  laws  or  any  other  corporate  regulations. 

Although  a  corporation  cannot  sue  but  in  its  true  name,  yet  that  will 
not  prevent  its  claiming  under  a  contract  made  with  it,  by  a  mistaken 
name,  provided  there  be  enough  to  distinguish  it  and  shew  that  it  was 
the  corporation  intended.  In  such  case,  the  mistake  may  be  averred 
in  pleading  or  shewn  in  evidence  upon  the  general  issue.  Thus  in  The 
Culpeper  Agricultural  and  Manufacturing  Society  v.  Digges  S^c.  6 
Rand.  165.  the  declaration  averred  that  the  defendants  executed  their 
obligation  to  the  plaintiffs,  by  the  name  of  "  The  President  and  Mana- 
gers of  i\\e  Culpeper  Agricultural  and  Manufacturing  Society;"  and  the 
defendants,  by  demurring  to  the  declaration,  raised  the  question  whether 
such  an  averment  could  be  made.     The  court  of  appeals  held  that  it 


Declarations.  405 

was  competent  to  the  plaintiiFs  to  make  the  averment,  and  overruled  the 
demurrer. 

What  counts  may  be  joined. — Some  remarks  upon  the  misjoinder 
of  counts  will  be  found  in  1  Rob.  Prac.  284,  5,  6. 

In  Virginia  as  well  as  in  England,  there  may  be  united,  in  the  same 
action  of  debt,  a  count  upon  a  specialty  and  a  count  on  a  simple  con- 
tract.    Eib  V.  PindalVs  ex'x,  5  Leigh  109. 

So  also,  in  the  same  action  of  debt,  there  may  be  united  with  a  count 
on  a  judgment,  counts  for  goods  sold,  money  lent  and  advanced,  money 
paid,  laid  out  and  expended,  and  money  had  and  received.  Union  Cot- 
ton Manufactory  v.  Lobdcll  S^c.  13  Johns.  462. 

But  the  counts  so  joined  must  all  be  framed  in  debt;  the  joinder  of 
counts  in  debt  and  assumpsit  not  being  allowed.  In  Bull  v.  Neale,  3 
Barn.  &l  Aid.  208.  5  Eng.  Com.  Law  Rep.  264.  the  record  stated  that 
the  plaintiff  had  brought  his  bill  against  defendant,  being  in  custody  &c., 
in  a  plea  of  debt,  and  the  commencement  of  the  declaration  was  in  the 
common  form  in  debt.  The  first  count  then  stated  that  defendant  was 
indebted  to  the  plaintiff  for  work  and  labour  &c.  and,  being  indebted, 
that  defendant  undertook  and  promised  to  pay  upon  request,  whereby  an 
action  hath  accrued  &c.  The  second  count  was  upon  a  quantum  meruit 
and  in  form  like  the  first.  The  other  counts  were  properly  framed  in 
debt.  To  this  declaration  there  was  a  demurrer,  assigning  for  cause  the 
misjoinder  of  debt  and  assumpsit ;  and  Dalton  v.  Smith,  2  Smith's  Rep. 
618.  was  relied  upon  in  support  of  the  demurrer.  The  court  intimated 
that  that  case  was  precisely  in  point;  and  the  plaintiff  asked  leave  to 
amend. 

Counts  in  covenant  cannot  be  joined  with  counts  in  assumpsit.  Pell 
V.  Lovett,  19  Wend.  546. 

Neither  can  counts  in  assumpsit  be  joined  with  counts  in  tort.  Cor- 
bettv.  Packington,  6  Barn.  &  Cress.  268.  13.  Eng.  Com.  Law  Rep.  170. 

Nor  can  a  count  in  trespass,  or  for  any  tort  committed  with  force,  be 
joined  with  a  count  in  case  for  trover,  or  any  tort  implying  no  force.  In 
the  former  case,  the  judgment  is  beside  damages  quod  defendens  capiatur 
pro  fine.  In  the  latter,  it  is  quod  sit  in  misericordiam.  Cooper  v.  Bis- 
sell,  16  Johns.  146.  Hensworth  v.  FowTces,  4  Barn.  &  Ad.  449.  24  Eng. 
Com.  Law  Rep.  99. 

In  Boyle  v.  Townes,  9  Leigh  158.  the  action  was  detinue,  and  the 
declaration  contained  two  counts,  both  upon  Townes's  own  possession. 
In  the  first  count  he  stated  his  possession  of  the  slave,  as  of  his  own 
property.  In  the  second  count  he  declared  that,  as  curator  and  recei- 
ver appointed  by  order  of  the  hustings  court  of  Petersburg  sitting  in 
chancery,  in  the  case  of  Patterson's  administratrix  against  Boyle's  ad- 
ministrator and  others,  he  was  lawfully  possessed  of  the  slave,  as  one  of 
the  slaves  belonging  to  the  trust  fund  in  the  said  chancery  suit,  and,  so 
being  possessed  of  the  said  slave,  casually  lest  the  same  out  of  his  pos- 
session. It  was  argued  that  this  was  a  misjoinder  of  action.  But  it 
was  held  otherwise.  Tucker,  president,  said,  "  The  plaintiff  is  the 
same  in  both  counts ;  and  though  he  claims  the  possession  on  two 
grounds,  first  on  the  ground  of  the  right  of  property,  and  next  of  the 
mere  right  of  possession,  yet,  on  each  ground,  the  claim  is  in  his  own 
right ;  and,  whether  he  succeed  on  one  or  the  other  count,  the  judg- 


406  Declarations  in  debt. 

ment  must  be  precisely  the  same.     Neither  count  sets  forth  a  claim  in 
outer  droit." 

A  count  against  an  executor  in  his  representative  character  cannot  be 
joined  with  a  count  against  him  individually.  Kayser  v.  Dishcr,  9 
Leigh  357.  31>/er  Sfc.  v.  Cole  S^c.  12  Johns.  349.  Demott  v.  Field,  7 
Cow.  58. 

But  in  an  action  by  executors,  with  counts  on  promises  to  the  testa- 
tor, there  may  be  united  counts  on  promises  to  the  executor  as  such, 
whenever  the  money  recovered  will  be  assets  in  the  hands  of  the  execu- 
tors. Fry  V.  Evans,  8  Wend.  530.  Lancejield  v.  Allen  S^c.  1  Bligh's 
Par.  Cas.  N.  S.  592.  The  declaration  though,  in  such  a  case,  must  be 
throughout  in  the  representative  character  of  the  plaintiff,  and  the- 
causes  of  action  which  accrued  to  the  plaintiif  must  appear  to  have  ac- 
crued to  him  in  that  character.     Christopher  v.  Stockholm,  5  Wend.  36. 

What  may  joined  in  same  count. — It  is  not  uncommon,  in  an  ac- 
tion of  assumpsit,  to  include  in  one  count  several  notes  of  hand ;  so  it 
is  now  the  common  practice  to  include  in  one  count  the  three  money 
counts.     Savage,  C.  J.  in  Rathhun  v.  Emigh,  5  Wend.  409-10. 

Rathbun  v.  Emigh  was  an  action  for  slander,  and  the  question  which 
arose,  was  as  to  the  propriety  of  including  in  the  same  count,  several 
sets  of  words.  The  words  were  all  charged  as  spoken  at  the  same  time, 
in  one  conversation.  They  were  all  of  the  same  signification,  and 
merely  varied  so  as  to  meet  the  proof  in  any  of  the  forms  of  expression. 
The  conclusion  of  the  court  was,  that  different  sets  of  words,  importing 
the  same  charge,  laid  as  spoken  at  the  same  time  might  be  included  in 
the  same  count. 

II.    IN   DEBT. 

What  is  to  be  demanded. — Where  a  declaration  in  debt  contains 
two  distinct  counts,  in  each  of  which  a  debt  of  $  600  is  specified,  the 
claim  in  the  commencement  of  the  declaration  may  be,  and  regularly 
ought  to  be,  that  the  defendant  render  unto  the  plaintiff  $  1200.  The 
People  v.  Van  Eps,  4  Wend.  387. 

But  a  plaintiff  should  never  demand  more  than  by  his  declaration  he 
shews  himself  entitled  to.  If,  for  example,  he  declare  on  a  judgment  or 
decree  which  as  recited  does  not  carry  interest,  he  should  merely  demand 
the  sum  recovered  by  the  judgment  or  decree.  He  should  not  demand 
it  with  interest.     Shelton's  ex'ors  v.  Welsh's  adm'rs,  7  Leigh  175, 

This  rule  is  not  disturbed  by  the  case  of  Kemp  v.  Mundell  and  others, 
9  Leigh  12.  In  3Iaryland,  interest  is  recoverable  of  right  in  actions  on 
written  contracts  for  the  payment  of  money  on  a  day  certain,  but  the 
practice  is,  to  give  judgment  for  it  in  the  form  of  damages,  with  a  me- 
morandum, at  the  foot  of  the  judgment,  that  the  damages  shall  be  re- 
leased, on  payment  of  the  interest.  In  conformity  with  this  practice, 
the  judgment  of  Mundell  and  others  against  Kemp  was  entered  for 
$  198  the  debt,  $  400  damages  and  the  costs,  with  a  memorandum  at 
the  foot  of  the  judgment,  that  the  plaintiffs  agreed  to  release  the  $  400 
damages,  upon  payment  of  the  interest  on  the  debt  from  the  30th  No- 
vember 1822  till  paid,  and  the  costs  of  suit.  In  the  action  brought  in 
Virginia  upon  the  judgment,  the  plaintiffs,  by  their  declaration,  de- 


Declaratiom  in  debt.  407 

manded  8  205,  being  the  amount  of  the  principal  debt  and  costs  and  in- 
terest on  the  principal  from  the  30th  November  1822.  This  declaration 
was  sustained. 

Debet  and  detinet. — Sometimes  a  declaration  is  in  the  detinet  only 
when  it  ought  regularly  to  be  in  the  debet  and  detinet.  This  was  the 
ground  of  demurrer  in  Bailey  S^c.  v.  BecTacith,  7  Leigh  G04.  In  that 
case,  the  action  having  been  brought  upon  a  bond  taken  to  the  plaintiff, 
was  an  action  in  his  own  right,  although  he  was  styled  executor  in  the 
bond,  and  technically  the  declaration  should  have  been  in  the  debet  as 
well  as  the  detinet.  But  the  court  held  the  allegation  of  the  debet  such 
mere  matter  of  form,  that  it  disregarded  the  omission  even  on  special 
demurrer. 

Description  of  the  parties. — If  the  defendants  are  stated  in  the 
bond  to  be  of  the  county  of  E.  and  this  is  omitted  in  the  declaration, 
the  variance  is  not  material.     Evans  v.  Smith,  1  Wash.  72. 

If  a  bond  be  payable  to  "James  Whitlow,  ju7i."  and  the  declaration 
is  in  behalf  of  "James  Whitlow,  jun.  alias  Jiames  Whitlock,"  and  states 
the  obligation  as  executed  to  the  plaintiff,  the  bond  should  not  be  re- 
jected as  evidence  because  of  such  variance.  Whitlock  v.  Ramsay's 
adm'x,  2  Munf  510. 

If  a  declaration  be  in  the  name  of  W.  P.  and  the  bond  produced  on 
the  trial  be  to  "  W.  P.  of  the  county  of  S.  on  account  of  messrs,  G. 
4*  P.  merchants  in  G."  an  objection  to  the  admission  of  the  bond  ought 
not  to  be  sustained.  Peter  v.  Cooke's  ex'or,  1  Wash.  257.  The  addi- 
tion in  the  bond  to  the  name  of  the  obligee  is  to  be  considered  as  merely 
descriptive  of  the  person  and  the  consideration  on  which  the  obligation 
was  founded.     Coalter,  J.  in  Moore  v.  Fcmoick,  Gilm.  215. 

In  Porter  v.  Nekervis,  4  Rand.  359.  the  declaration  was  filed  in  the 
name  of  W.  N.  Cashier  of  the  Farmers  Bank  of  Virginia,  and  stated  the 
note  to  have  been  endorsed  to  the  plaintiff.  Upon  a  general  demurrer 
to  the  declaration,  it  was  held  that  the  endorsement  to  W.  N.,  by  the 
name  of  "  cashier  of  the  Farmers  Bank  of  Virginia,"  gave  him  the  le- 
gal right  to  sue  in  his  own  name ;'  and  that  the  action  in  the  name  of 
W.  N.  with  the  addition  aforesaid  was  but  an  action  in  his  own  name : 
The  demurrer  was  therefore  overruled. 

Description  of  the  note  or  obligation. — In  an  action  against 
two  defendants  upon  a  bond,  if  it  be  charged  that  both  of  them  acknow- 
ledged themselves  to  be  indebted  to  the  plaintiff,  and  the  declaration  pro- 
ceeds throughout  as  if  the  bond  was  jointly  executed  by  both,  the  plain- 
tiff cannot  give  in  evidence  a  writing  which  begins,  "  Know  all  men 
&.C.,  that  I,  H.  R.,  am  held"  &.c.  and  is  written  throughout  as  if  it  were 
the  acknowledgment  of  only  one  person.  Such  a  writing,  although  it 
be  signed  by  both  defendants,  materially  varies  from  the  one  declared 
on.     Bell  v.  Allen's  adm'r,  3  Munf  118. 

A  declaration  which  makes  profert  of  a  writing  obligatory,  sealed  with 
the  seal  of  the  defendant,  will  not  be  supported  by  the  production  of  an 
instrument  purporting  in  the  body  of  it  to  be  executed  only  under  the 
hand  of  the  party,  although  such  instrument  have  a  scroll  affixed  to  it. 
Austin's  adm'x  v.  Whitlock' s  ex'ors,  1  Munf  487.  See  also  Baird  v. 
Blagrove,  I  Wash.  170. 


408  Declarations  in  debt. 

Though  a  writing  purport  that  the  maker  thereof  binds  himself,  his 
heirs  &c.  to  pay  a  sum  of  money  for  value  received,  yet  if  it  is  not  ac- 
knowledged on  the  face  thereof  to  be  under  his  seal  but  only  under  his 
hand,  such  writing  is  not  a  specialty  but  only  a  promissory  note,  notwith- 
standing a  scroll  be  annexed  to  it.  Anderson  v.  Bullock  S^c.  4  Munf 
443.  See  also  Tucker,  J.  in  Argcnbright  v.  Campbell  Sf  wife,  3  H.  &  M. 
174.  Jenkins  v.  Hurt's  commissioners,  3  Rand.  446.  and  Peasley  v. 
Boattvright,  2  Leigh  195. 

'  If  such  writing  be  in  the  form  of  a  penal  bill,  the  declaration  shoul3 
claim  according  to  the  legal  effect  of  the  contract,  that  is,  the  principal 
sum,  and  not  the  penalty,  and  should  notice  the  penalty  only  by  way  of 
describing  the  writing  sued  upon.  Jenkins  v.  Hurt's  commissioners,  2 
Rand.  44(5. 

Default  of  payment. — Where  a  bond  is  conditioned  for  the  pay- 
ment of  a  sum  of  money  generally,  and  the  condition  says  nothing  as  to 
a  demand,  a  plea  alleging  that  there  was  no  demand  before  action 
brought,  is  no  answer  to  the  action.  In  Gibhs  S^'c.  ex'ors  of  Edwards  v. 
Southam,  5  Barn.  &  Ad.  911.  27  Eng.  Com.  Law  Rep.  235.  the  action 
was  debt  on  a  bond  for  £  1512.  conditioned  to  pay  £  756.  with  interest 
after  the  rate  of  <£5.  for  each  £  100.  for  a  year,  without  fraud  or  further 
delay.  To  a  plea  that  payment  of  the  said  sum  of  £  756.  with  interest 
was  not  demanded  before  the  exhibiting  the  bill,  there  was  a  demurrer. 
And  the  court  sustained  the  demurrer,  and  entered  judgment  for  the 
plaintiffs. 

A  stipulation  to  pay  on  a  particular  day,  unless  some  event  shall  hap- 
pen which  in  its  nature  may  happen  either  before  or  after  tliat  day,  ne- 
cessarily implies  that  the  money  is  to  be  paid,  if  the  event  does  not  hap- 
pen before  that  day.  Thus  in  Cobbs  v.  Fountains,  3  Rand.  484.  the  ac- 
tion was  upon  a  specialty  by  which  the  obligor  undertook  that,  if  W.  C. 
who  was  prosecuted  for  murder  was  not  found  guilty  of  murder  in  the 
first  degree,  he  would  pay  the  obligee  the  sum  of  $  200  on  or  before  the 
12th  of  September  1819.  The  plaintiff  averred  that  W.  C.  was  not 
sentenced  for  murder  in  the  first  degree,  whereby  action  accrued  to  the 
plaintiff  to  recover  the  said  sum  of  $  200  after  the  12th  of  September 
1819.  The  defendant  pleaded  that  W.  C.  had  never  been  acquitted  of 
murder  in  the  first  degree,  but  that  the  prosecution  against  him  remained 
undetermined.  And  the  court  of  appeals  decided  that  this  plea  could 
not  be  sustained.  The  instrument  could  not  be  construed  to  mean  that 
the  plaintiff  was  not  entitled  to  the  money  until  W.  C.  was  acquitted  of 
murder  in  the  first  degree,  but  the  meaning  was  that  if  W.  C.  was  not 
found  guilty  of  murder  in  the  first  degree  and  sentenced  for  that  crime 
before  the  time  appointed  for  the  payment,  the  plaintiff  was  thereupon 
entitled  to  the  money. 


Declarations  in  debt.  409 

1.   On  a  promissory  note  hy  the  j)ayee  against  the  maker.     1  Rob. 

Prac.  45.  46. 

In  the  circuit  superior  court  of  law  and  chancery  for  the  county 
of  H.  {or  In  the  court  of  if.  county)  march  rules  1832. 

H.  county,  to  wit : 

/.  W.  complains  of  M.  F.  in  custody  &c.,  of  a  plea 
t*hat  he  render  to  the  said  plaintiff  the  sum  of  sixty  dollars 
which  he  owes  to  the  said  plaintiff,  and  unjustly  detains  from 
him.  And  thereupon  the  said  plaintiff"  saith  that  heretofore,  to 
wit,  on  the  first  day  of  January  1S27,  at  the  said  county  of  if., 
the  said  M.  F.  made  his  certain  note  in  writing,  bearing  date 
the  day  and  year  aforesaid,  and  subscribed  his  name  thereto,  by 
which  said  note  he  the  said  M.  F.  then  and  there  promised  to 
pay,  on  or  before  the  first  day  of  January  next  after  the  date 
thereof,  to  the  said  plaintiff,  sixty  dollars.  And  the  plaintiff 
avers,  that  although  the  said  sum  of  sixty  dollars  hath,  accord- 
ing to  the  tenour  and  effect  of  the  said  note,  been  long  since  due 
and  payable,  and  although  the  said  M.  F.  hath  been  often  re- 
quested to  pay  the  same  to  the  said  plaintiff,  yet  the  said  M.  F. 
hath  not  paid  to  the  said  plaintiff  the  said  sum  of  money,  or  any 
part  thereof,  but  hath  hitherto  wholly  neglected  and  refused  so 
to  do,  and  fetill  doth  neglect  and  refuse  so  to  do,  to  the  damage 
of  the  said  plaintiff  twenty  dollars  ;  and  therefore  he  brings 
suit  &c. 

2.   On  tux)  promissory  notes. 

In  the  circuit  court  of  the  United  States  for  the  fifth  circuit  and 
eastern  district  of  Virginia. 

Eastern  district  of  Virginia^  to  wit : 

P.  H.  and  R.  E.  B.  citizens  of  the  state  of  New  Yor?c,* 
trading  as  merchants  and  partners  under  the  name  and  style 
of  H.  ^'  B.  complain  of  A.  O.  E.  a  citizen  of  the  state  of 
Virginia,  residing  in' the  eastern  district  thereof,  being  in  cus- 
tody &c.  of  a  plea  that  he  render  to  the  said  plaintiffs  the 
sum  of  two  thousand  and  thirty-four  dollars  and  fifty-eight  cents 
which  to  the  said  plaintiffs  he  owes,  and  from  them  unjustly 
detains.  And  thereupon  the  said  plaintiffs  say  that  heretofore, 
to  wit,  on  the  12th  day  of  April  1833,  at  New  York,  to  wit,  at 
the  said  eastern  district  of  Virginia.,  the  said  A.  O.  E.  made  his 
certain  promissory  note  in  writing,  bearing  date  the  day  and 
year  aforesaid,  and  subscribed  his  name  thereto,  by  which  said 
note  he  the  said  A,  O.  E.  then  and  there  promised  to  pay,  six 
months  after  the  date  thereof,  to  the  said  plaintiffs,  bv  their 

52 


410  Declarations  in  debt. 

name  and  style  aforesaid, t  twelve  hundred  and  twenty-seven 
dollars  nineteen  cents,  parcel  of  the  sum  above  demanded,  for 
value  received.  And  the  said  plaintiffs  further  say  that  hereto- 
fore, to  wit,  on  the  10th  day  of  October  1833,  at  New  York,  to 
wit,  at  the  said  eastern  district  of  Virginia,  the  said  A.  O.  E. 
made  his  certain  other  promissory  note  in  writing,  bearing  date 
the  day  and  year  last  aforesaid,  and  subscribed  his  name  thereto, 
by  which  said  note  he  the  said  A.  O.  E.  then  and  there  promised 
to  pay,  six  months  after  the  date  thereof,  to  the  said  plaintiffs, 
by  their  name  and  style  aforesaid,  the  further  sum  of  eight  hun- 
dred and  seven  dollars  thirty-nine  cents,  which  with  the  said 
twelve  hundred  and  tv^'enty-seven  dollars  nineteen  cents  amounts 
to  the  said  sura  of  two  thousand  and  thirty-four  dollars  and 
fifty-eight  cents  above  demanded.  Nevertheless  the  said  A.  O. 
'  E.  (although  often  requested  so  to  do)  hath  not  as  yet  paid  the  said 
sum  of  two  thousand  and  thirty -four  dollars  and  fifty-eight  cents 
above  demanded,  or  any  part  thereof,  to  the  said  plaintiffs,  but 
hath  hitherto  wholly  neglected  and  refused,  and  still  neglects 
and  refuses  so  to  do,  to  the  damage  of  the  said  plaintiffs  &c.  (as 
in  No.  1.) 

*In  the  courts  of  the  United  States,  the  declaration  shews  on  its  face 
a  case  to  which  the  judicial  power,  of  those  courts,  extends. 

t  In  Gordon  S^c.  v.  Browne's  ez'or,  3  H.  &>  M.  219.  the  declaration 
was  in  the  names  of  three  persons,  surviving  partners  of  themselves  and 
four  others,  late  merchants  and  partners  acting  under  the  style  of  A.  F. 
upon  a  writing  obligatory  described  as  made  to  the  said  A.  F.  with- 
out alleging  that  the  bond  was  made  to  themselves,  by  the  name  and 
style  of  A.  F.  The  declaration  so  drawn  was  considered  by  judge 
Tucker  to  shew  no  right  in  the  plaintiffs  to  bring  the  action.  And  judge 
Roane  seems  to  have  been  of  the  same  opinion. 

3.   On  a  single  hill. 

In  the  court  of  hustings  for  the  city  of  i2. — March  rules  1829. 
City  of  R.  to  wit : 

E.  J.  an  inhabitant  of  the  city  of  R.*  complains  of  R. 
H.  K.,  also  an  inhabitant  of  the  same  city,  being  in  cus- 
tody &c,,  of  a  plea  that  he  render  to  the  said  plaintiff  the  sum 
of  eighty  dollars  which  he  owes  to,  and  unjustly  detains  from, 
the  said  plaintiff.  And  thereupon  the  said  plaintiff  saith  that 
heretofore,  to  wit,  on  the  13th  day  of  October  1828,  at  the  said 
city  of  R.,  and  within  the  jurisdiction  of  this  court,  the  said  R. 
H.  K.  by  his  certain  writing  obligatory,  sealed  with  his  seal,  and 
to  the  court  now  here  shewn,  the  date  whereof  is  the  day  and 
year  last  aforesaid,  promised  and  obliged  himself  to  pay  to  the 
said  plaintiff,  on  the  first  day  of  January  next  ensuing  the  date 


Declarations  in  debt.  411 

thereof,  eighty  dollars.  And  the  plaintiff  avers  that  although 
the  said  sum  of  eighty  dollars,  in  the  said  writing  obligatory 
specified,  hath,  according  to  the  tenor  and  effect  of  the  said 
writing  obligatory,  been,  long  since,  due  and  payable,  and  al- 
though the  said  R.  H.  K.  hath  been  often  requested  to  pay  the 
same  to  the  said  plaintiff,  yet  the  said  R.  H.  K.  hath  not  paid 
to  the  said  plaintiff  the  said  sum  of  money,  or  any  part  thereof, 
but  to  pay  the  same  to  the  said  plaintiff  hath  hitherto  wholly 
refused,  and  still  doth  refuse,  to  wit,  at  the  said  city,  and  within 
the  jurisdiction  aforesaid,  to  the  damage  of  the  said  plaintiff  &c. 
(as  in  No.  1.) 

•  This  declaration  was  filed  in  a  suit  brought  anterior  to  the  act  of 
March  29.  1837,  in  sess.  acts  1836-7,  p.  270.  §  4.  It  was  drawn  in  con- 
formity with  the  decisions  cited  in  1  Rob.  Prac.  5,  6. 

4.   On  a  'penal  hill  payable  an  demand. 

As  in  No.  1.  to — heretofore,  to  wit :  on  &c.  at  &c.  the  said  T. 
H.  by  his  certain  writing  obligatory,  sealed  with  his  seal,  and 
now  shewn  to  the  court,  the  date  whereof  is  the  day  and  year 
last  aforesaid,  promised  to  pay  on  demand,  to  the  said  plain- 
tiffs, the  sum  of  $93.71  for  the  payment  of  which  he  bound 
himself  in  the  penal  sum  of  $  187.42.  And  the  said  plaintiff 
further  sailh  that  afterwards,  to  wit,  on  &c.  at  &c.  the  said  plain- 
tiffs demanded*  of  the  said  T.  H.  the  said  sum  of  S  93.71,  but 
the  said  T.  H.  did  not  pay  the  same  to  the  said  plaintiffs,  when 
so  demanded,  as  by  his  said  writing  obligatory  he  promised  to 
do,  nor  has  he  paid  the  same  to  the  said  plaintiffs  at  any  other 
time,  but  therein  has  wholly  failed,  and  made  default.  By  rea- 
son whereof  the  said  writing  obligatory  became  forfeited,  and 
action  accrued  to  the  said  plaintiffs  to  demand  and  have,  of  and 
from  the  said  T.  H.,  the  said  sum  of  $  187.42  above  demanded. 
Nevertheless  the  said  T.  H.  although  thereunto  often  requested, 
hath  not  as  yet  paid  to  the  said  plaintiffs  the  said  sum  oP 
$  187.42,  or  any  part  thereof,  but  &c.  (as  in  No.  1.) 

*  Carter  v.  Ring,  3  Camp.  459.  was  an  action  of  debt  on  a  bond  in 
the  penal  sum  of  £  3S00.  conditioned  to  pay  £  1900.  on  demand,  with 
lawful  interest,  at  the  rate  of  5  per  cent,  per  annum  until  paid.  The  de- 
fendant, after  oyer,  pleaded  that  no  demand  of  payment  of  the  said  sum 
of  money,  in  the  said  condition  mentioned,  or  of  any  interest  thereupon, 
was  ever  made  by  the  plaintiff.  The  plaintiff  replied  that  a  demand  was 
made  by  him  upon  the  defendant,  and  issue  was  joined.  At  the  trial 
the  plaintiff  insisted  that  the  bringing  the  action  was  a  sufficient  de- 
mand. But  lord  Ellenhorongh  was  of  opinion  that  the  plaintiff  was 
bound  to  prove  a  demand  before  action  brought. 


412  Declarations  in  debt^ 

5.   On  two  bonds. 

As  in  No.  1.  to — heretofore,  to  wit,  on  &c.  at  &c.  the  said  S. 
E.  by  his  certain  writing  obhgatory,  sealed  with  his  seal,  and 
now  shewn  to  the  court,  the  date  whereof  is  the  day  and  year 
last  aforesaid,  acknowledged  himself  to  be  held  and  firmly 
bound  unto  the  said  plaintiff  in  the  just  and  full  sum  of  $  3000, 
to  be  paid  unto  the  said  plaintiff.  And  the  said  plaintif}^  further 
saith  that  the  said  S.  E.  heretofore,  to  wit,  on  &c.  at  &c.  by  his 
certain  other  writing  obligatory,  sealed  with  his  seal,  and  now 
shewn  to  the  court,  the  date  whereof  is  the  day  and  year  last 
aforesaid,  acknowledged  himself  to  be  held  and  firmly  bound 
unto  the  said  plaintiff  in  a  certain  other  sum  of  $  3000  to  be 
paid  unto  the  said  plaintiff,  which  said  two  sums  of  $3000 
amount  together  to  the  said  sum  of  $6000  above  demanded. 
Nevertheless  the  said  S.  E.,  although  often  requested  so  to  do, 
hath  not  as  yet  paid  the  said  sum  of  $  6000  above  demanded, 
or  any  part  thereof,  to  the  said  plaintiff,  but  hath  hitherto  wholly 
neglected  and  refused,  and  still  neglects  and  refuses  so  to  do, 
to  the  damage  &c.  (as  in  No.  1.) 

6.  Against  husband  and  wife  on  a  bond  given  by  Iter  before  the 

marriage. 

W.  R.  complains  of  A.  B.  and  S.  his  wife  who  before  her  in- 
termarriage with  the  said  A.  B.  was  S.  M.,  being  in  custody 
&c.,  of  a  plea  that  they  render  to  him  the  sum  of  $351  which 
they  owe  to,  and  unjustly  detain  from  him.  And  thereupon  the 
said  plaintiff  saith  that  the  said  S.  whilst  she  was  sole  and  un- 
married, to  wit,  on  &c.  at  &c.  by  her  certain  writing  obligatory, 
sealed  with  her  seal,  and  to  the  court  now  here  shewn,  the  date 
whereof  is  the  day  and  year  aforesaid,  acknowledged  herself  to 
be  held  and  firmly  bound  to  the  said  plaintiff  in  the  said  sum  of 
$351  above  demanded  to  be  paid  to  the  said  plaintiff.  Never- 
theless the  said  S.  whilst  she  was  sole  and  unmarried,  and  the 
said  A.  B.  and  S.  his  wife  since  their  intermarriage,  (although 
often  requested  so  to  do),  have  not,  nor  hath  either  of  them,  as 
yet  paid  the  said  sum  of  $351  above  demanded,  or  any  part 
thereof,  to  the  said  plaintiff,  but  to  pay  the  same,  or  any  part 
thereof,  to  the  said  plaintiff,  they  have,  and  each  of  them  hath, 
hitherto  wholly  neglected  and  refused,  and  they  do  and  each  of 
them  doth,  still  neglect  and  refuse,  to  the  damage  &c.  (as  in 
No.  1.) 


Declarations  in  debt.  413 

7.  Against  executors  on  the  bond  of  testator.     1  Rob.  Prac.  52. 

The  case  of  Grymes  v.  Pendleton,  4  Call  130.  judge  3/ercer  observed, 
in  Watkins's  ex'ors  v.  Tate,  3  Call  521.  was  an  express  authority  to 
prove  that  at  law  the  ^executors  of  two  persons  could  not  be  joined  in 
the  same  action.  In  that  case,  he  said,  the  judges  who  sat  in  it,  had 
unanimously  given  that  opinion.  But  the  president  (judge  Pendleton), 
who  was  one  of  the  plaintiffs  in  Grijmes  v.  Pendleton  and  did  not  sit  in  that 
cause,  upon  this  reference  to  the  decision  in  it,  stated  that  he  was  never 
satisfied  with  that  decision  and  wished  the  point  to  remain  open  to  be 
reconsidered,  should  it  again  occur. 

J.  D.  and  J.  D.  merchants  and  partners  under  the  firnn  of  /. 
^  J.  D.  con:i plain  of  R.  K.  executrix  of  the  last  will  and  testament 
of  J.  K.  deceased,  being  in  custody  &c.  of  a  plea  that  she  render 
to  them  $  1645.18  cents  which  she  unjustly  detains  from  them. 
And  thereupon  the  said  plaintiffs  say  that  the  said  J.  K.  in  his 
lifetime,  to  wit,  on  &c.  at  &c.  by  his  certain  writing  obligatory, 
sealed  with  his  seal,  and  to  the  court  now  here  shewn,  the  date 
whereof  is  the  day  and  year  aforesaid,  acknowledged  himself 
to  be  held  and  firmly  bound  to  the  said  plaintiffs,  by  the  said 
name  of  J.  ^' J.  D.  in  the  said  sum  of  $  1645.18  cents  above 
demanded,  to  be  paid  to  the  said  plaintiffs.  Nevertheless  the 
said  J.  K.  in  his  lifetime  did  not  pay  nor  hath  the  said  R.  K.  ex- 
ecutrix as  aforesaid  since  the  death  of  the  said  J.  K.  as  yet  paid 
the  said  sum  of  $  1645.18  cents  above  demanded,  or  any  part 
thereof,  to  the  said  plaintiffs  (although  often  requested  so  to  do), 
but  the  said  J.  K.  in  his  lifetime,  so  to  do,  wholly  refused,  and 
the  said  R.  K.  executrix  as  aforesaid,  ever  since  the  death  of 
the  said  J.  K.  hitherto  hath  wholly  refused,  and  still  doth  refuse, 
to  pay  the  same,  or  any  part  thereof,  to  the  said  plaintiffs,  to 
to  wit,  at  &c.  to  the  damage  &c.  (as  in  No.  1.) 

8.   On  a  joint  bond  against  the  surviving  obligor. 

As  in  No.  1.  to — heretofore  to  wit,  on  &c.  at  &c.  the  said  C. 
D.  and  one  E.  F.,  in  the  lifetime  of  the  latter,  by  their  certain 
writing  obligatory  &c.  (here  describe  the  obligation).  And  the 
plaintiff  further  saith  that  the  said  E.  F.  has  departed  this  life, 
and  that  before  his  death  the  said  C.  D.  and  E.  F.  had  not,  nor 
had  either  of  them,  paid  the  said  sum  of  money,  or  any  part 
thereof:  Whereby  the  plaintiff's  right  of  action  hath  survived 
against  the  said  C.  D.  to  demand  and  recover  from  him  the  said 
.sum  of  money.  Nevertheless  the  said  C.  D.  although  often  re- 
quested so  to  do,  hath  not,  nor  hath  any  other  person,  as  yet 
paid,  to  the  said  plaintiff,  the  said  sum  of  money,  or  any  part 
thereof,  but  payment  of  the  same,  and  of  every  part  thereof, 


414  Declarations  in  dehu 

hath  hitherto  been  wholly  neglected,  and  such  payment  is  still 
refused  by  the  said  C.  D.  to  the  damage  &c.  (as  in  No.  1.) 


who  was 


9.  On  a  joint  hand  against  the  representative  of  an  obligor 

survived  by  his  co-obligor.     1  Rob.  Prac.  49. 

As  in  No.  1.  to — complains  of  C.  D.  executor  of  the  last 
will  and  testament  of  E.  F.  deceased  {or  administrator  of  the 
personal  estate  of  E.  F.  deceased)   being  in  custody  &c.  of  a 

plea  that  he  render  to  the  said  plaintiff  the  sum  of  $ ,  which 

he  unjustly  detains  from  him.  And  thereupon  the  said  plaintiff 
saith  that  the  said  E.  F.  and  one  G.  H.  in  the  lifetime  of  the 
said  E.  F.  to  wit,  on  &c.  at  &c.  by  their  certain  writing  obliga- 
tory &c.  (here  describe  the  obligation).  Nevertheless  the  said 
E.  F.  and  G.  H.  in  the  lifetime  of  the  latter,  did  not  pay,  nor 
hath  the  said  G.  H.  since  the  death  of  the  said  E.  F.  nor  hath 
the  said  C.  D.  executor  (or  administrator)  as  aforesaid,  paid  the 
said  sum  of  $  — —  above  demanded,  or  any  part  thereof,  to  the 
said  plaintiff,  although  often  requested  so  to  do,  but  to  pay  the 
same,  or  atiy  part  thereof,  they  have,  and  each  of  them  hath, 
wholly  refused,  and  the  said  C.  D.  executor  {or  administrator) 
as  aforesaid,  still  doth  refuse  to  the  damage  of  the  said  plaintiff 
&c.  (as  in  No.  1.) 

10.  By  representative  of  obligee  against  obligors.     1  Rob.  Prac.  62. 

If  a  person  who  is  administrator  of  another,  take  a  bond  payable  to 
himself,  with  the  addition  of  "  administrator  of"  that  other,  the  bond  is 
not  thereby  made  a  credit  of  the  decedent,  but  the  person  to  whom  the 
same  is  payable  may  maintain  an  action  thereon  in  the  debet  and  detinet, 
as  for  his  own  credit ;  and  after  his  death,  that  right  of  action  will  de- 
volve on  his  executor  or  administrator,  and  not  on  the  representative  of 
the  first  decedent.     Bowden  ex' or  of  Moore  v.  Taggart,  3  Munf.  513. 

So  if  one  of  two  executors,  take  a  bond  payable  to  himself,  with  the 
addition  of  "  executor  of"  the  testator,  without  mentioning  the  other, 
and  afterwards  dies,  the  other  surviving  him,  the  right  of  action  is  in 
the  executor  or  administrator  of  the  executor  to  whom  the  bond  is  pay- 
able, and  not  in  the  surviving  executor  of  the  first  testator.  Pulliam's 
ex'x  V.  Johnson  Sfc.  4  Munf  71. 

W.  H.  and  R.  C.  executors  of  the  last  will  and  testament  of 
G.  C.  deceased  complain  of  R.  L.  and  J.  P.  being  in  custody 
&c.  of  a  plea  that  they  render  to  him  the  sum  of  S200  which 
they  unjustly  detain  from  him.  And  thereupon  the  said  plain- 
tiffs say,  that  the  said  R.  L.  and  J.  P.  on  &c.  at  &c.  by  their 
certain  writing  obligatory,  sealed  with  their  seals,  and  to  the 
court  now  here  shewn,  the  date  whereof  is  the  same  day  and 


Dcclaratians  in  debt.  415 

year  aforesaid,  acknowledged  themselves  to  be  held  and  firmly 
bound  unto  the  said  G.  C.  in  his  lifetime,  in  the  said  sum  of 
$200  above  demanded,  to  be  paid  to  the  said  G.  C,  his  execu- 
tors, administrators  or  assigns,  when  they  the  said  R.  L.  and 
J.  JP.  should  be  thereunto  afterwards  requested.  Nevertheless 
the  said  R.  L.  and  J.  P.  (although  often  requested  so  to  do) 
have  not,  nor  hath  either  of  them,  as  yet  paid  the  said  sum  of 
$200  above  demanded,  or  any  part  thereof,  to  the  said  G.  C, 
in  his  lifetime,*  or  to  the  plaintiffs'  executors  as  aforesaid,  since 
the  death  of  the  said  G.  C,  but  to  pay  the  same,  or  any  part 
thereof,  to  the  said  G.  C.in  his  lifetime,  or  to  the  plaintiffs  since 
his  death,  they  have,  and  each  of  them  hath,  hitherto  wholly 
refused,  and  they  do,  and  each  of  them  doth,  still  refuse,  to  the 

damage  of  the  said  plaintiffs  as  executors  as  aforesaid-  $ , 

and  therefore  they  bring  their  suit  &c.  And  the  said  plaintiffs 
bring  here  into  court  the  certificate  granted  them  for  obtaining  a 
probat  of  the  will  of  the  said  G.  C.  deceased,  whereby  it  fully 
appears  to  the  said  court  here  that  the  said  plaintiffs  are  execu- 
tors of  the  last  will  and  testament  of  the  said  G.  C.  deceased 
and  have  the  execution  thereof  &c. 

*  In  an  action  by  a  surviving  executor  for  a  debt  due  the  testator,  if 
the  declaration  merely  aver  that  the  debt  was  not  paid  to  the  plaintiff, 
without  averring  that  it  was  not  paid  to  the  testator  of  the  plaintiff,  or 
to  either  of  his  co-executors,  it  will  be  defective.  Buckner  S^'c.  v.  Mit- 
cheU's  ex'or,  2  Munf  336. 

11.  By  an  administrator  de  bonis  von  idth  the  will  annexed  agaitut 
two  partners,  upon  a  penal  bill  sealed  by  one  partner,  for  himself 
and  his  copaj'tner.  by  the  aiithority  and  in  the  presence  of  the  co- 
partn&r.  Ball  v.  Dunsterville  6fc.  4  T.  R.  313.  MacJcay  ^'c.  v. 
Bloodgoods,  9  Johns.  285.  Shelton  v.  Pollock  Sf  Co.  1  H.  &  M. 
423.  Garland  v.  Davidson,  3  Munf.  189.  Poindexter  v.  Waddy, 
6  Munf.  420.     1  Rob.  Prac.  52. 

H.  county,  to  wit: 

D.  E.  administrator  of  the  estate  of  J,  H.  senior  deceased, 
unadministered  by  C.  T.  sheriff"  of  K.  W.  county,  with  the  will 
of  the  said  J.  H.  senior  annexed  (to  which  said  C.  T.  as  sheriff* 
aforesaid,  had  been  committed  for  administration,  the  estate  of 
the  said  J.  H.  senior,  unadministered  by  A.  H.  executor  of  the 
last  will  and  testament  of  the  said  J.  H.  senior,  with  the  will  of 
the  said  J.  H.  senior  annexed),  complains  of  L.  W.  and  J.  W. 
late  partners  under  the  firm  of  W.  and  W^  in  custody  &c.  of  a 
plea  that  they  the  said  W.  and  W.  render  unto  the  plaintiff"  the 
sum  of  eight  hundred  dollars  which  from  the  said  plaintiff*  the 


416  Declarations  in  deht. 

said  W.  ^  W.  unjustly  detain.  And  thereupon  the  said  plain- 
tiff saith  that  the  said  L.  W.  and  J.  TV.  heretofore,  to  wit,  on  the 
13th  day  of  January  1826,  and  in  the  lifetime  of  the  said  J.  H. 
senior  deceased,  by  a  certain  writing  obligatory,  sealed  by  the 
said  L.  TV.  for  and  on  behalf  of  himself  and  the  said  J.  TV.  and 
by  the  authority  and  in  the  presence  of  the  said  /.  TV.  (which 
writing  obligator^'  is  now  here  shewn  to  the  court)  promised 
to  pay  the  said  J.  H.  senior,  on  or  before  the  first  day  of  January 
next  ensuing  the  date  thereof,  the  sum  of  four  hundred  dollars, 
to  which  payment  well  and  truly  to  be  made,  the  said  L.  TV. 
and  J.  TV.  bound  themselves,  jointly  and  severally,  by  the  said 
writing  obligatory,  in  the  penal  sum  of  eight  hundred  dollars. 

Yet  the  said  L.  TV.  and  J.  TV.  or  either  of  them,  did  not  pay 
to  the  said  J.  H.  senior,  on  or  before  the  said  first  day  of  Janu- 
ary last  mentioned,  although  he  was  then  alive,  the  said  sum  of 
four  hundred  dollars,  as  by  their  said  writing  obligatory  they 
promised  to  do,  but  therein  wholly  failed  and  made  default. 
Whereby  the  said  writing  obligatory,  and  penal  sum  aforesaid, 
became  forfeited,  and  action  accrued  to  the  said  J.  H.  senior,  in 
his  lifetime,  afterwards  to  ^.  JS,  executor  of  the  last  will  and  tes- 
tament of  the  said  J.  H.  senior,  subsequently  to  the  said  C.  J. 
sheriff  as  aforesaid,  to  whom  was  committed  for  administration 
the  estate  of  the  said  .7.  H.  senior,  unadministered  by  the  said 
A.  H.  with  the  will  of  the  said  J.  H.  annexed,  and  lastly  to  the 
plaintiff  as  the  administrator  of  the  estate  of  the  said  J.  H. 
senior,  unadministered  by  the  said  C.  T.  with  the  will  of 
the  said  J.  H.  senior  annexed,  to  demand  and  have  of  and 
from  the  said  L,  TV.  and  J.  TV.  the  said  sum  of  eight  hun- 
dred dollars  above  demanded.  Nevertheless  the  said  L.  TV. 
and  J.  TV.  have  not,  nor  hath  either  of  thern,  paid  the  said 
sum  of  eight  hundred  dollars,  or  any  part  thereof,  to  the  said  J. 
H.  senior  in  his  lifetime  ;  neither  have  they,  or  either  of  them, 
paid  the  same  to  the  said  A.  H.  executor  as  aforesaid,  or  to  the 
said  C.  T.  sheriff  and  administrator  as  aforesaid,  or  to  the  said 
plaintiff.  But  to  pay  the  said  sum  of  money,  or  any  part  thereof, 
they  the  said  L.  TV.  and  J.  TV.  have,  and  each  of  them  hath, 
hitherto  wholly  refused,  and  they  do,  and  each  of  them  doth, 
still  refuse  to  pay  the  same,  or  any  part  thereof,  to  the  plaintiff, 
to  the  damage  of  the  said  plaintiff  fifty  dollars ;  and  therefore 
he  brings  suit  &c. 

And  the  said  plaintiff  brings  here  into  court  his  letters  of  ad- 
ministration, whereby  it  sufficiently  appears  to  the  court  that  the 
said  plaintiff  is  the  administrator  of  the  estate  of  the  said  J.  H. 
senior  deceased,  unadministered  by  the  said  C.  T.  sheriff  as 
aforesaid,  with  the  will  of  the  said  /.  H.  senior  annexed,  and,  as 
such  administrator,  hath  the  administration  thereof  &c. 


Declarations  in  debt.  417 

12.  By  tJie  administrator  of  a  surviving  partner  against  heirs  on  a 
bond  of  their  ancestor,     1  Rob.  Prac.  52. 

In  declaring  against  a  remote  heir,  he  should  be  charged  as  heir  of 
the  heir  of  the  obhgor,  or  as  heir  of  the  obligor,  with  a  videlicet  setting 
forth  the  intervening  descent.  It  will  not  do  to  charge  him  as  immediate 
heir  to  the  obligor,  without  noticing  the  intermediate  descent.  Waller's 
ex'ors  V.  Ellis,  2  Munf  88.  But  it  is  unnecessary  to  state  how  the  de- 
fendant is  heir,  for  it  may  not  be  in  the  plaintiff's  knowledge.  S.  C.  The 
objection  appears  to  have  been  overruled  in  the  case  of  Denkam  v.  Ste- 
phenson, I  Salk.  355.  in  which  it  was  made,  and  the  court  took  this  dis- 
tinction between  an  action  by  and  against  an  heir.  In  the  former  case, 
the  plaintiff  must  shew  his  pedigree  and  how  heir,  for  it  lies  within  his 
knowledge,  but  in  the  latter  it  is  not  necessary,  for  the  plaintiff  is  a 
stranger,  and  it  would  be  hard  to  compel  him  to  set  forth  another's  pedi- 
gree. 

TV.  G.  administrator  of  the  personal  estate  of  J.  G.  deceased 
who  was  the  surviving  partner  of  the  late  firm  of  G.  and  K. 
which  consisted  of  T.  G.  now  deceased,  J.  K.  also  deceased 
and  the  said  J.  G.,  late  merchants  and  partners,  carrying  on  bu- 
siness under  the  above  mentioned  firm,  complains  of  J.  W.  and 
A.  JF.,  sons  and  heirs,  and  J.  It.  and  C.  his  wife,  a  daughter 
and  heiress,  of  B.  TV.  deceased,  being  in  custody  &c.  of  a  plea 
that  they  render  to  him  the  said  plaintiff  the  sum  of  £  1524. 11. 
of  lawful  money  of  Virginia,  which  they  owe  to*  and  unjustly 
detain  from  him.  And  thereupon  the  said  plaintiff  saith  that 
while  the  said  firm  of  G.  and  K.  was  existing,  and  in  the  life- 
time of  the  said  B.  W.  to  wit,  on  &c.  at  &c.  he  the  said  B.  W. 
whose  heirs  the  said  J.  W.,  A.  W.,  and  C.  are,  by  his  certain 
writing  obligatory,  sealed  with  his  seal  and  to  the  court  now 
here  shewn,  the  date  whereof  is  the  day  and  year  aforesaid,  ac- 
knowledged himself  to  be  held  and  firmly  bound  to  the. said  T. 
G.,  J.  K.,  and  J.  G.  by  the  name  and  stylet  of  G.  and  K.  in  the 
sum  of  £  1524.  11.  of  current  money  of  Virginia,  to  be  paid  to 
them,  or  the  survivors,  or  survivor,  of  them,  or  the  executor  or 
administrator  of  such  survivor,  whenever  he  the  said  B.  W. 
should  be  thereunto  afterwards  requested,  for  which  payment, 
to  be  well  and  truly  made,  he  the  said  B.  W.  bound  himself  and 
his  heirs  firmly  by  the  said  writing  obligatory.  Nevertheless 
the  said  B.  W.  in  his  lifetime,  and  the  said  J.  W.,  A.  TV.,  J.  R. 
and  C.  his  wife  since  the  death  of  the  said  B.  Tl^.,  (although 
often  requested  so  to  do)  have  not,  nor  hath  either  of  them  paid 
the  said  sum  of  £  1524.  11.,  or  any  part  thereof,  to  the  firm  of 
G.  and  K.  or  any  member  thereof  while  it  existed  or  to  J.  K. 
and  J.  G.  the  survivors  of  T.  G.  or  to  J.  G.  the  last  survivor  or  to 
the  plaintiff,  but  the  said  B.  TV.  in  his  lifetime  did  wholly  refuse 
53 


418  Declarations  iri  debt. 

so  to  do,  and  the  said  J.  TV.,  A.  TV.,  J.  R.  and  C.  bis  wife  since 
his  death  have,  and  each  of  them  hath,  wholly  refused  so  to  do, 
to  the  damage  &c.  (as  in  No.  1.) 

And  the  said  plaintiff  brings  here  into  court  the  certificate 
granted  him  for  obtaining  letters  of  administration  on  the  estate 
of  the  said  J.  G.  deceased,  whereby  it  appears  that  he  the  said 
plaintiff  is  the  administrator  of  the  estate  of  the  said  J.  G.  de- 
ceased, and  as  such,  hath  the  administration  thereof  &c. 

*  An  heir  should  be  charged  in  the  chhet  and  detinet,  but  if  charged 
in  the  detinet  only,  the  defect  is  not  fatal  on  general  demurrer.  Wal- 
ler's ex'ors  V.  Ellis,  2  Munf.  88. 

t  See  opinions  of  judges  Tucker  and  Roane,  in  Gordon  Sfc.  v.  Browne's 
executor,  3  H.  &-  M.  219,  cited  ante,  p.  410. 

13.  By  obligee  against  heirs  and  devisees  of  obligor  jointly. 
1  Rob.  Prac.  52. 

In  order  to  bring  a  case  within  the  statute  giving  an  action  of  debt 
against  the  heir  and  devisee,  the  relation  of  creditor  and  debtor  must 
exist  between  the  claimant  and  the  devisor,  in  the  lifetime  of  both.  In 
Farley  S^c.  v.  Briant  S^c*  3  Ad.  &  E.  839.  30  Eng.  Com.  Law  Rep. 
239.  debt  was  brought  against  the  heirs  and  devisees  of  John  Briant. 
A  lease  having  been  granted  to  one  Jenkins,  the  covenants  by  Jenkins 
were  joined  in  by  Briant,  who  thus  became  liable  for  their  performance. 
There  had  been  no  breach  of  the  covenants  by  Jenkins  when  Briant 
died.  Briant,  at  the  time  he  died,  being  only  contingently  liable  for 
the  breach  of  any  covenant,  the  court  of  king's  bench  considered  that 
he  was  not  indebted  at  that  time,  and  that  it  was  not  a  legal  fraud  in  him 
so  to  dispose  of  his  lands  by  will  as  to  prevent  the  covenantee  from  hav- 
ing recourse  to  them. 

A  precedent  of  a  declaration  against  heirs  and  devisees  jointly  will 
be  found  in  2  Chitty's  Pleading  p.  469.  The  edition  referred  to  is  the 
5  Am.  from  4  Lond.  ed.  Phila.  1828. 

14.  By  an  assignee  in  Ids  own  name.     1  Rob.  Prac.  45,  6,  7. 

The  assignee  cannot  sue  as  obligee,  but  must  set  forth  the  assignment 
in  his  declaration.      Gordon  S^c.  v.  Browne's  ex'or,  3  H.  iSt.  M.  219. 

If  the  declaration  allege  that  the  note  sued  on  was  assigned  by  the 
payee  to  the  plaintiff,  but  fail  to  state  where  the  assignment  was  made, 
the  defendant  may  demur  specially  to  the  declaration  for  this  cause,  but 
the  defect  is  not  one  which  can  be  taken  advantage  of  on  general  de- 
murrer.    Bank  of  Marietta  v.  Pindall,  2  Rand.  477. 

Profert  need  not  be  made  of  the  assignment.  Lease  v.  Box,  1  Wils. 
121. 

If  the  declaration  described  the  bond  as  given  by  the  defendant  to  H. 
C.  and  by  him  assigned  to  the  plaintiff,  and  upon  the  bond  produced, 
it  appears  there  was  an  assignment  from  H.  C.  to  J.  F.  which  has  been 


Declarations  in  debt.  419 

stricken  out  except  the  signature  of  H.  C.  above  which  is  endorsed  the 
assignment  to  the  plaintiff,  the  bond,  notwithstanding  the  appearance  of 
the  prior  assignment,  will  be  considered  as  answering  the  description 
contained  in  the  declaration.     Drummond  v.  Crutcher,  2  Wash.  218. 

Although  the  assignment  be  stated  in  the  declaration  to  be  for  value 
received,  yet  it  is  not  necessary  for  the  plaintiff,  after  proving  the  assign- 
ment, to  shew  by  other  evidence  that  the  same  was  made  for  value. 
Wilson  V.  Codman's  ex'or,  3  Cranch  193. 

T.  C.  B.  assignee  of  H.  L.  C,  who  was  assignee  of  S.  T.  W., 
complains  of  J.  R.  C.  being  in  custody  &c.,  of  a  plea  that  he 
render  to  t'ne  said  plaintiff"  the  sum  of  $  85  with  legal  interest 
thereon  from  the  first  day  of  January  1834  which  to  the  said 
plaintiff'  he  owes,  and  from  him  unjustly  detains.  And  there- 
upon the  said  plaintiff"  saith  that  heretofore,  to  wit,  on  &c.  at 
&c.  the  said  /.  R.  C.  by  his  certain  writing  obligatory,  sealed 
with  his  seal,  and  to  the  court  now  here  shewn,  the  date  whereof 
is  the  day  and  year  last  aforesaid,  promised  to  pay  or  cause  to 
be  paid  to  the  said  S.  T.  W.,  or  his  assigns,  on  or  before  the 
first  day  of  August  next  ensuing  the  date  of  the  said  writing 
obligatory,  the  just  sum  of  $85  with  interest  thereon  from  the 
first  day  of  January  1834.  And  the  said  plaintiff"  saith  that 
after  the  making  of  the  said  writing  obligatory,  to  wit,  on  the  said 
16lh  day  of  January  1834,  at  the  said  county  of  if.,  the  said  S. 
T.  TV.  made  an  endorsement  on  the  said  writing  obligatory,  and 
subscribed  his  name  thereto,  and  thereby  the  said  S.  T.  W.  as- 
signed the  said  writing  obligatory  to  the  said  H.  L.  C.  for  value 
received  ;  whereof  the  said  J.  R.  C,  then  and  there,  had  notice  ; 
and  after  the  said  assignment,  to  wit,  on  the  29th  day  of  June 
1834,  at  the  said  county  of  H.,  the  said  H.  L.  C.  made  an  en- 
dorsement on  the  said  writing  obligatory,  and  subscribed  his 
name  thereto,  and  thereby  assigned  the  said  writing  obligatory  to 
the  said  plaintiff",  for  value  received  ;  whereof  the  said  J.  R.  C, 
then  and  there,  also  had  notice.  And  the  plaintiff"  avers  that 
the  said  /.  R.  C,  although  thereunto  often  requested,  hath  not, 
as  yet,  paid,  or  caused  to  be  paid,  the  said  sum  of  $85  with 
lawful  interest  thereon  as  aforesaid,  or  any  part  thereof,  either 
to  the  said  S.  T.  W.  before  notice  of  his  said  assignment  of  the 
said  writing  obligatory,  or  to  the  said  //.  L.  C.  after  the  said  as- 
signment to  him  of  the  said  writing  obligatory,  and  before  notice 
of  his  assignment  thereof  to  the  plaintiff',  or  to  the  said  plaintiff" 
since  the  said  assignment  to  him,  but  Vj  pay  the  same,  and  every 
part  thereof,  hath  hitherto  wholly  refused,  and  still  doth  refuse, 
to  the  damage  &c.  (as  in  No.  1.) 


420  Declarations  in  debt. 

Another. 

J.  B.  W.  assignee  of/.  L.  M.  who  was  assignee  of  T.  P.  com- 
plains of  A.  L.  B.  who,  being  a  member  of  the  council  of  state, 
has  been  duly  summoned,  and  R.  A.  who  is  in  custody  &c.  of  a 
plea  that  they  the  said  A.  L.  B.  and  R.  A.  render  to  the  said 
plaintiff  the  sum  of  two  hundred  and  eighty-five  dollars,  which 
to  the  said  plaintiff  they  owe,  and  from  him  unjustly  detain. 
And  thereupon  the  said  plaintiff  saith  that  heretofore,  to  wit,  on 
&c.  at  &c.  the  said  A.  L.  B.  and  R.  A.  by  their  certain  writing 
obligatory,  sealed  with  their  seals,  and  to  the  court  now  here 
shewn,  the  date  whereof  is  the  day  and  year  aforesaid,  acknow- 
ledged themselves  to  be  held  and  firmly  bound  unto  the  said  T.  P. 
in  the  just  and  full  sum  of  two  hundred  and  eighty-five  dollars 
above  demanded,  to  be  paid  unto  the  said  T.  P.  or  his  assigns  ; 
which  said  writing  obligatory  was  and  is  subject  to  a  certain 
condition  thereunder  written,  to  the  effect  following,  to  wit,  that 
if  the  said  A.  L.  B.  should  well  and  truly  pay,  or  cause  to  be 
paid,  on  or  before  the  first  day  of  January  1829,  unto  the  said 
T.  P.  or  his  assigns,  the  just  sum  of  one  hundred  and  forty-two 
dollars  and  fifty  cents,  then  the  said  obligation  was  to  be  void, 
or  else  to  remain  in  full  force  and  virtue.  And  the  said  plain- 
tiff further  saith  that  after  the  making  of  the  said  writing  obli- 
gatory, to  wit,  on  &c.  at  &c.  the  said  T.  P.  made  an  endorsement 
on  the  said  writing  obligatory  and  subscribed  his  name  thereto, 
and  by  the  said  endorsement  assigned  the  said  writing  obliga- 
tory to  the  said  J.  L.  M.,  whereof  the  said  A.  L.  B.  and  R.  A. 
then  and  there,  had  notice ;  and  after  the  last  mentioned  assign- 
ment, to  wit,  on  &c.  at  &c.  the  said  J.  L.  M.  made  his  endorse- 
ment on  the  said  writing  obligatory  and  subscribed  his  name 
thereto,  and  by  his  said  endorsement  duly  assigned  the  said 
writing  obligatory  to  the  plaintiff,  whereof  the  said  A.  L.  B.  and 
R.  A.  then  and  there,  also  had  notice.  And  the  said  plaintiff 
further  saith  that  the  said  A.  L.  B.  although  thereunto  often  re- 
quested, hath  not  as  yet  paid,  or  caused  to  be  paid,  the  said  sum 
of  one  hundred  and  forty-two  dollars  and  fifty  cents  either  to 
the  said  T.  P.  before  notice  of  his  said  assignment  of  the  said 
writing  obligatory,  or  to  the  said  J.  L.  M.  after  the  said  assign- 
ment to  him  of  the  said  writing  obligatory,  and  before  notice  of 
his  assignment  thereof  to  the  plaintiff,  or  to  the  said  plaintiff 
since  the  said  assignment  to  him  of  the  said  writing  obligatory. 
By  means  of  which  said  premises,  and  by  force  of  the  act  of 
assembly  in  such  case  made  and  provided,  action  hath  accrued 
to  demand  and  have  of  and  from  the  said  A.  L.  B.  and  R,  A. 
the  said  sum  of  two  hundred  and  eighty-five  dollars  above  de- 
manded.   IVevertheless  the  said  A.  L.  B.  and  R.  A.,  although 


Declarations  in  debt.  421 

often  requested  so  to  do,  have  not,  nor  hath  either  of  them  as  yet 
paid  the  said  sum  above  demanded  or  any  part  thereof,  either 
to  ihe  said  T.  P.  before  notice  of  the  assignment  aforesaid  by 
the  said  P.  of  the  said  writing  obligatory,  or  to  the  said  J.  L. 
M.  after  the  assignment  last  mentioned,  and  before  notice  of  the 
assignment  aforesaid  by  the  said  M.  of  the  said  writing  obliga- 
tory, or  to  the  said  plaintiff  since  the  assignment  of  the  said 
writing  obligatory  to  him  the  said  plaintiflf:  but  to  pay  the  same 
ihey  have,  and  each  of  them  hath,  hitherto  wholly  refused  ;  and 
they  do,  and  each  of  them  doth,  still  refuse,  to  the  damage  &c. 
(as  in  No.  1.) 

16.  In  the  name  of  obligee  or  payee  for  benefit  of  assignee.    Gar- 
land V.  Richeson,  4  Rand.  266.  1  Rob.  Prac.  47. 

In  cases  of  assignment,  it  is  the  settled  law  that  if,  before  the  as- 
signee of  a  bond  takes  it,  he  applies  to  the  obligor,  informs  him  of  his 
design  to  buy,  and  receives  assurances  that  there  is  no  objection  to  the 
bond  and  that  it  will  be  duly  paid,  the  obligor  cannot  afterwards  set  up 
against  the  assignee  the  defence  of  payment  or  illegal  consideration. 
Tucker,  P.  in  Davis's  adm'r  v.  Thomas  S^c.  5  Leigh  4. 

The  case  of  Davis's  adm'r  v.  Thomas  S^c.  was  an  action  of  debt  on  a 
promissory  note,  brought  by  Thomas,  suing  for  the  benefit  of  M.  Davis 
against  T.  Davis,  to  which  nil  debet  was  pleaded.  The  defendant  hav- 
ing adduced  evidence  to  prove  that  the  debt  had  been  paid  to  the  plain- 
tiff Thomas,  evidence  was  adduced  on  the  other  side  to  prove,  that  be- 
fore the  note  was  transferred  by  Thomas  to  M.  Davis,  T.  Davis,  the 
maker  of  the  note,  promised  to  pay  the  debt  to  M.  Davis.  The  court 
of  appeals  was  of  opinion  that  it  was  competent  to  the  plaintiff,  to  move 
the  court  to  instruct  the  jury  if  they  believed  the  evidence  of  the  pro- 
mise to  pay  was  true,  to  disregard  the  evidence  of  payment  to  the  plain- 
tiff; for  if  the  former  evidence  was  true,  the  defendant  had  no  right  to 
introduce  the  latter  in  support  of  his  plea. 

16.   Of  bills  of  exchange  generally.     1  Rob.  Prac.  47,  8,  9. 

How  DRAWN,  ACCEPTED  OR  ENDORSED. — A  party  may  be  bound  by 
writing  his  name  on  a  blank  piece  of  paper.  His  signature  given  in 
blank,  with  authority  to  fill  up  a  bill  or  note,  is  a  letter  of  credit  to  any 
amount ;  and  it  is  immaterial  that  the  person  taking  the  bill  or  note  on 
the  credit  of  his  name,  knew  that  the  signature  was  obtained  first,  and 
the  bill  or  note  drawn  afterwards.  See  opinion  of  Coalter,  J.  in  Ben- 
nett v.  Slaule's  adm'x,  Gilm.  313.  and  opinion  of  Brooke,  J.  in  Taylor, 
adm'r  of  Holloioay  v.  Bruce,  Gilm.  81. 

In  Schultz  v.  Astley,  2  Bingh.  N.  C.  544.  29  Eng.  Com.  Law  Rep. 
414.  the  defendant  wrote  across  several  slips  of  paper,  the  words,  "  ac- 
cepted, payable  at  messrs.  Praed's  Sf  Co.  J.  Astley,"  and  delivered 
the  slips  of  paper  to  John  M.  Hart.  Afterwards,  P.  Clissold  put  his 
name  to  two  of  these  papers  in  the  places  where  the  name  of  a  drawer 


422  Declarations  in  debt, 

and  endorser  of  a  bill  of  exchange  ought  to  appear ;  and  subsequently, 
these  two  papers  were  filled  up  as  bills  of  exchange  for  £  500.  each.  It 
was  objected  that  the  giving  a  blank  acceptance  authorized  only  the 
party  to  whom  it  was  given  to  draw  the  bill;  or  at  all  events,  that  it  did 
not  authorize  Clissold,  a  stranger,  to  sign  his  name  on  the  same  blank 
piece  of  paper  as  drawer,  the  bill  itself  being  subsequently  written  upon 
the  paper  by  some  other  person.  But  the  objection  was  overruled, 
Tindal,  C.  J.  who  delivered  the  opinion  of  the  court,  said,  "  the  court 
could  not  see  any  distinction  in  principle  where  the  bill  has  passed  into 
the  hands  of  third  persons,  between  holding  the  acceptor  liable  for  a 
given  amount,  when  the  bill  is  afterwards  drawn  in  the  name  of  the 
party  who  has  obtained  the  acceptance,  and  when  it  is  drawn  by  a  stran- 
ger who  becomes  the  drawer  at  the  instance  of  the  party  to  whom  the 
acceptance  is  given.  The  blank  acceptance  is  an  acceptance  of  the  bill 
which  is  afterwards  put  upon  it ;  and  it  seems  to  follow  from  the  doctrine 
of  lord  Mansfield  in  Russell  v.  Langstaffe,  Doug.  514.  that  it  does  not 
lie  in  the  mouth  of  the  acceptor  to  say,  that  the  drawing  or  endorsing  of 
the  bill  is  irregular." 

In  Robertson  S^c.  v.  Williams  S^c.  5  Munf.  381.  the  note  was  origi- 
nally signed  in  blank,  and  endorsed  in  blank  by  the  first  endorser,  and 
was  sent  to  the  second  endorser  to  be  filled  up  for  a  given  sum,  and  dis- 
counted at  bank  for  the  accommodation  of  the  maker.  The  second  en- 
dorser having  failed  to  obtain  the  desired  accommodation,  filled  up  the 
note  with  a  larger  amount  than  was  intended,  then  obtained  a  third  en- 
dorser upon  it  and  got  a  broker  to  discount  the  note  for  his  own  use. 
The  note  was  protested  as  to  the  drawer  and  two  first  endorsers  and  was 
retired  from  bank  by  the  third  endorser.  He  had  endorsed  it  without 
consideration,  paid  the  full  amount  of  the  note  when  he  retired  it  from 
bank,  and  had  no  knowledge  of  the  fraud  of  the  second  endorser  until 
after  it  was  so  retired.  It  was  held,  that  he  might  recover  against  the 
drawer  and  previous  endorsers. 

Of  the  endorsement,  whether  general  or  special. — Where,  by 
the  endorsement  of  the  payee,  the  note  is  made  payable  to  an  endorsee, 
or  his  order,  and  afterwards  a  greater  negotiability  is  given  to  it,  by  a 
blank  endorsement  of  the  endorsee,  that  negotiability  may  be  again  re- 
stricted by  the  special  endorsement  of  another  endorsee.  And  if  such 
special  endorsement  be  made,  a  person  afterwards  receiving  the  note  is 
bound  to  shew  that  he  comes  within  the  authority  comprised  in  it.  He 
must  deduce  a  title  under  that  person,  to  whom,  or  to  whose  order,  it  is 
made  payable  by  the  special  endorsement  last  mentioned.  He  cannot 
strike  out  such  special  endorsement,  and  claim  a  property  in  the  note 
under  the  blank  endorsement.  Opinion  of  the  court  in  Myers  Sf  son 
V.  Friend  Sf  Scott,  1  Rand.  12. 

This  rule  prevails  where  the  person  receiving  the  note,  subsequent  to 
the  special  endorsement,  had  never  any  property  in  the  note,  prior  to 
the  special  endorsement.  It  is  otherwise  if  the  note  should  get  back  to 
the  same  person  who  made  the  special  endorsement.  In  that  case,  the 
right  appertains  to  him  to  strike  out  the  special  endorsement  which  he 
made,  and  bring  an  action  under  the  previous  blank  endorsement.  Opi- 
nion of  court  in  S.  C. 


Declarations  in  debt.  423 

Such  was  the  opinion  of  the  supreme  court  of  the  United  States  in 
the  case  of  Dugan  v.  The  United  States,  3  Wheat.  182.  That  court 
after  an  examination  of  the  cases  on  the  subject,  (which  cannot  all  of 
them  be  reconciled,)  was  of  opinion,  that  if  any  person  who  endorses  a 
bill  of  exchange  to  another,  whether  for  value  or  for  the  purpose  of  col- 
lection, shall  come  to  the  possession  thereof  again,  he  shall  be  regarded, 
unless  the  contrary  appear  in  evidence,  as  the  bona  fide  holder  and  pro- 
prietor of  such  bill,  and  shall  be  entitled  to  recover,  notwithstanding 
there  may  be  on  it  one  or  more  endorsements  in  full,  subsequent  to  the 
one  to  him, ^without  producing  any  receipt  or  endorsement  back  from  ei- 
ther of  such  endorsers,  whose  names  he  may  strike  from  the  bill  or  not, 
as  he  may  think  proper. 

That  the  nominal  plaintiff  who  has  possession  of  the  bill  or  note  en- 
dorsed in  blank,  is  not  the  real  party  in  interest,  is  not  permitted  to  be 
shewn  by  a  defendant  who  has  no  legal  or  equitable  defence  to  the  bill 
or  note,  as  against  the  real  owner  thereof  See  opinion  of  Walworth, 
chancellor,  in  Morton  v.  Rogers,  14  Wend.  580. 

A  blank  endorsement  is  conclusive  proof  of  the  assent  of  the  endor- 
ser, to  transfer  the  note  to  the  holder,  if  he  elects  to  take  it  as  a  trans- 
fer. And  the  assent  of  the  holder  to  treat  the  endorsement  as  a  trans- 
fer, is  proved  as  well  by  suing  on  it  in  his  own  name  as  by  writing  over 
it  an  assignment  to  himself  If,  therefore,  a  judgment  be  rendered  on 
behalf  of  the  endorsee,  and  the  note,  being  made  a  part  of  the  record, 
shews  that  the  endorsement  was  in  blank,  an  appellate  court  will  regard 
the  objection  as  of  no  importance.  Rees  v.  Conococheague  bank,  5 
Rand.  326.  See  also  Hooe  v.  Wilson,  5  Call  61.  and  Evans  v.  Gee,  11 
Peters  80. 

Want  of  coxsideration. — As  between  the  immediate  parties  to  a 
bill  or  negotiable  note,  and  an  immediate  endorser  and  endorsee,  such  bill 
or  note  has  no  peculiar  character,  distinguishing  it  from  any  other  con- 
tract. It  is  open  to  all  objections  to  the  consideration  or  want  of  con- 
sideration, and  all  set-offs  and  equities  between  those  parties  which  would 
be  available  in  other  contracts,  not  founded  on  a  deed.  See  opinion  of 
Green,  J.  in  Gilliat  v.  Lynch,  2  Leigh  503.  But  it  is  very  different  when 
a  third  party  acquires  an  interest  for  value. 

The  endorsee  of  a  negotiable  note  will  not  be  affected  by  any  equity 
which  the  drawer  may  have  against  the  other  parties,  if  such  endorsee  be 
a  bona  fide  holder  of  the  note  for  full  and  valuable  consideration,  with- 
out notice  of  the  equity,  and  took  the  note  in  a  due  course  of  trade. 
Lomax  V.  Picot,  2  Rand.  247.  31' Neil  S^-c.  v.  Baird,  6  Munf  316.  That 
the  endorsee  purchased  with  notice  of  the  consideration  for  which  the 
note  was  given,  and  that,  after  the  purchase,  the  consideration  failed,  will 
not  constitute  the  endorsee  a  holder  with  notice  of  the  equity.  Lomax 
V.  Picot,  2  Rand.  247.  And  every  negotiable  security  endorsed  before 
it  is  payable,  with  intent  to  make  it  the  absolute  property  of  the  endorsee, 
is  endorsed  in  the  due  course  of  trade.  Opinion  of  Green,  J.  in  S.  C 
260. 

The  endorsement  of  a  negotiable  security  ^r?*»ia  facie  imports  an  as- 
signment for  full  and  valuable  consideration.     Green,  J.  in  S.  C.  259. 

As  a  general  rule,  therefore,  even  where  there  is  a  failure  of  conside- 
ration, or  other  equitable  defence,  as  between  the  defendant  and  the 


424  Declarations  in  debt. 

drawee  or  payee  of  the  bill  or  note,  or  his  immediate  endorsee,  it  is  not 
incumbent  upon  the  plaintiff  to  prove  when,  or  upon  what  consideration, 
the  bill  or  note,  upon  which  the  suit  is  brought,  was  transferred  to  him, 
or  how  it  came  into  his  hands.  The  defendant  however,  may,  in  such 
cases,  shew  by  testimony,  the  want  of  consideration,  as  between  him 
and  the  immediate  party  with  whom  he  contracted,  and  that  the  suit  is 
brought  for  his  benefit;  or  that  the  plaintiff  received  the  bill  or  note, 
with  a  knowledge  of  the  defendant's  equitable  riglits  in  relation  to  the 
same,  or  under  such  circumstances  that  he  cannot  be  considered  the 
bona  fide  holder  thereof  Opinion  of  Walworth,  chancellor,  in  Morton 
V.  Rogers,  14  Wend.  580,  81. 

In  the  case  of  Heath  v.  Sansom  and  Evans,  2  Barn.  &  Ad.  291. 
22  Eng.  Com.  Law  Rep.  78.  Littledale,  J.  lays  it  down  "  as  a  general 
rule,  that  if  the  note  or  acceptance  were  taken  under  such  circumstances 
that  the  endorser  himself  could  not  recover,  the  endorsee  must  prove 
that  he  became. so  for  a  good  consideration  ;"  and  Patteso7i,  J.  expresses 
a  similar  opinion.  But  lord  Tenterden,  C.  J.  founds  his  judgment  in 
that  case  upon  the  particular  circumstances  of  it,  and  so  does  Parke,  J, 
He  says,  "  I  am  of  the  same  opinion  on  the  special  circumstances  of  the 
case,  but  I  have  always  understood  that  an  endorsement  must  be  taken, 
prima  facie,  to  have  been  given  for  value,  and  that  the  proof,  at  least  of 
circumstances  tending  to  throw  suspicion  on  such  endorsement,  lies  on 
the  party  disputing  its  validity,  before  the  endorsee  can  be  called  upon 
to  prove  that  he  gave  value  for  the  bill.  This  doctrine  appears  to  me  to 
be  correctly  laid  down  by  Eyre,  C.  J.  in  Collins  v.  Martin,  1  B.  &-  P. 
648." 

"  When,"  says  Parke,  J.  "  the  note  or  acceptance  has  been  obtained 
by  felony,  by  fraud,  or  by  duress,  it  has  been  usual  to  require  proof  of 
valuable  consideration  on  the  part  of  the  endorsee ;  and  I  do  not  dispute 
the  propriety  of  that  usage,  as  any  one  of  these  facts  raises  some  suspi- 
cion of  the  title  of  the  holder.  But  I  am  by  no  means  satisfied  that  the 
same  rule  can  be  applied  to  all  cases  where  an  acceptance  or  note  has 
been  given  without  consideration." 

In  the  more  recent  case  of  Bramah  S^c.  v.  Roberts  Sfc.  1  Bingh.  N. 
C.  469.  27  Eng.  Com.  Law  Rep.  460,  all  the  judges  concurred  in  the 
opinion  that  the  third  plea  was  bad.  The  action  was  by  the  endorsees 
against  the  acceptor,  and  the  third  plea  was  that  the  defendants  were 
defrauded  of  the  bill,  and  the  acceptance  was  given  by  them  without 
consideration.  Tindal,  C.  J.  in  his  opinion  uses  this  language:  "Inas- 
much as  the  endorsee  of  a  bill  of  exchange  is  by  law,  prima  facie,  as- 
sumed to  hold  it  for  consideration  ;  inasmuch  as  we  are  not  to  presume 
a  notice  which  would  make  him  a  fraudulent  agent  in  taking  a  bill  of 
exchange ;  and  inasmuch  as  this  plea  is  silent  upon  the  subject  of  want 
of  consideration  on  the  part  of  the  endorsees,  or  of  notice  of  the  fraud, 
we  are  to  ask  ourselves  whether  upon  the  transfer  of  the  bill  of  ex- 
change, the  circumstance  of  the  acceptor  having  been  defrauded  at  the 
time  when  he  gave  the  acceptance,  is  an  answer  against  an  innocent  en- 
dorsee for  a  valuable  consideration  without  notice.  It  seems  to  me  that 
it  is  not  a  sufficient  answer." 

Other  late  cases  are  referred  to  by  chancellor  Walworth,  in  Morton  v. 
Rogers,  conforming  to  the  opinion  of  Parke,  J.     The  conclusion  de- 


Declaratiojis  in  debt.  425 

duced  by  the  chancellor  is  that  when  the  defendant  shews  upon  the  trial 
that  the  instrument  on  which  the  suit  is  brought,  was  lost  or  stolen,  or 
that  it  was  obtained  from  him  either  fraudulently  or  by  force,  or  that  it 
has  been  obtained  by  force  or  fraud  from  any  previous  holder,  and  put 
in  circulation  without  the  consent  of  the  owner,  the  defendant,  upon  the 
proof  of  those  circumstances,  may  require  the  plaintiff  to  shew  that  the 
note  or  bill  came  into  his  hands,  or  into  the  hands  of  some  other  per- 
son, from  whom  he  rightfully  received  the  same,  for  a  good  considera- 
tion, before  it  was  due  and  dishonoured,  and  in  the  usual  course  of 
trade  or  business. 

Consideration  w^hich  makes  the  paper  illegal  and  void. — Where 
a  statute  has  declared  certain  acts  and  things  illegal,  and  that  all  contracts, 
securities  &c.  founded  on  them  shall  be  void,  as  for  instance  the  statutes 
against  usury  and  gaming  ;  in  these  cases,  the  original  taint  adheres  to  the 
paper  in  whosesoever  hands  it  may  come.  It  is  void,  and  the  defence  may 
be  set  up  in  Virginia  as  well  against  the  innocent  holder  as  the  usurer 
or  gambler  himself  See  opinion  of  Carr,  J.  in  Taylor  v.  Beck,  3 
Rand.  323.  In  like  manner,  although  a  note  be  valid  as  between  the 
maker  and  the  payee,  yet  if  the  payee  endorse  it  for  a  usurious  conside- 
ration, no  title  passes  by  the  endorsement,  and  no  action  can  be  main- 
tained by  the  endorsee  against  the  maker.  Opinions  of  the  judges  in 
Whitworth  v.  Adams,  5  Rand.  333. 

In  England,  a  change  has  been  made  by  the  stat.  5  &  6  W.  4.  ch. 
41.  §  1.  After  reciting  that  securities  and  instruments  made  void  by 
virtue  of  the  several  acts  therein  mentioned,  are  sometimes  endorsed, 
transferred,  assigned  or  conveyed  to  purchasers  or  other  persons  for  a 
valuable  consideration,  without  notice  of  the  original  consideration  for 
which  such  securities  or  instruments  were  given,  and  that  the  avoidance 
of  such  securities  or  instruments  in  the  hands  of  such  purchasers  or 
other  persons,  is  often  attended  with  great  hardship,  the  statute  enacts 
that  so  much  of  the  acts  therein  mentioned  as  enacts  that  any  note,  bill 
or  mortgage  shall  be  absolutely  void,  is  thereby  repealed ;  but  neverthe- 
less every  note,  bill  or  mortgage  which,  if  this  statute  had  not  passed, 
would,  by  virtue  of  the  acts  therein  mentioned,  or  any  of  them,  have 
been  absolutely  void,  shall  be  deemed  and  taken  to  have  been  made, 
drawn,  accepted,  given  or  executed  for  an  illegal  consideration,  and  the 
said  acts  shall  have  the  same  force  and  effect  which  they  would  respec- 
tively have  had,  if  instead  of  enacting  that  any  such  note,  bill  or  mort- 
gage should  be  absolutely  void,  such  acts  had  respectively  provided  that 
every  such  note,  bill  or  mortgage  should  be  deemed  and  taken  to  have 
been  made,  drawn,  accepted,  given  or  executed  for  an  illegal  considera- 
tion.    See  the  statute  in  33  Eng.  Com.  Law  Rep.  250. 

What  is  deemed  a  foreign  bill. — It  has  been  a  question  whether  a 
bill  drawn  in  one  state  of  the  Union  upon  a  person  living  in  another,  was 
to  be  treated  as  a  foreign  or  an  inland  bill.  It  has  been  adjudged  by  the 
supreme  court  of  Neio  York,  that  such  a  bill  is  a  foreign  bill.  Halliday 
V.  31'Dougall  Sfc.20  Wend.  81.  And  the  decisions  of  the  supreme 
court  of  the  United  States  are  the  same  way.  Buckner  v.  Finley  Sfc. 
2  Peters  586.  Bank  of  the  United  States  v.  Daniel  ^c.  12  Peters  32. 
It  is  difficult,  says  judge  Washington,  (in  delivering  the  opinion  of  the 
supreme  court,)  to  understand  upon  what  principle,  bills  of  exchange 
64 


426  Declarations  in  debt. 

drawn  in  one  state  upon  another  state  can  be  considered  as  inland,  "  un- 
less in  a  state  where  they  are  declared  to  be  such  by  a  statute  of  that 
state."     2  Peters  592. 

By  the  statute  of  Virginia,  it  is  enacted  "  that  all  bills  of  exchange 
or  drafts  for  money  in  the  nature  of  bills  of  exchange  drawn  by  any  per- 
son or  persons  residing  in  this  state,  on  any  person  or  persons  in  the 
United  States,  or  in  the  territories  thereof,  or  in  the  district  of  Columbia, 
shall  be  considered,  in  all  cases  whatsoever,  as  inland  bills  of  exchange." 
1  R.  C.  1819,  p.  483.  §  1. 

But  a  bill  of  exchange  drawn  in  another  state  on  a  house  in  Virginia, 
is  a  foreign  bill,  unless  the  law  of  the  state  in  which  the  bill  is  drawn 
has  expressly  enacted  otherwise.    Brown  Sf  Sons  v.  Ferguson,  4  Leigh  37. 

Whether  presentment  for  acceptance  is  necessary. — Bills  of 
exchange  payable  at  a  given  time  after  date,  need  not  be  presented  for 
acceptance  at  all ;  and  payment  may  at  once  be  demanded  at  their  ma- 
turity.    Story,  J.  in  Townsley  v.  Sumrall,  2  Peters  178,  9. 

If  acceptance  be  refused,  notice  of  dishonour  necessary. — If  a 
bill  be  presented  and  acceptance  be  refused,  it  is  dishonoured ;  and  no- 
tice must  be  given.  Marshall,  C.  J.  in  The  Bank  of  Washington  v. 
Triplett  4*  Neale,  1  Peters  35. 

In  case  of  foreign  bill,  protest  and  notice  both  necessary. — 
When  a  foreign  bill  is  presented  to  the  drawees  for  acceptance,  and  they 
refuse  to  accept,  it  is  necessary,  in  order  to  entitle  the  holder  to  recover 
against  the  drawer  or  endorser,  that  there  should  be  not  only  a  notice  of 
but  also  a  protest  for  non-acceptance.  Thompson  v.  Cumming,  2  Leigh 
32L  Contra,  Broion  v.  Barry,  3  Dall.  365.  Clarke  v.  Russell,  id. 
415.  Wilson  v.  Lenox,  1  Cranch  193.  And  therefore  where  a  bill  is 
payable  sixty  days  after  sight,  and,  upon  sight  thereof,  the  drawees  refuse 
to  accept,  although  at  the  expiration  of  the  sixty  days  it  should  be  again 
presented  for  payment  and  payment  should  be  refused,  and  there  should 
then  be  protest  for  non-payment  and  notice  thereof,  this  will  not  be  suf- 
ficient to  charge  the  endorser.  Proof  that  the  bill  was  duly  protested 
for  non-acceptance,  and  that  the  endorser  had  notice  thereof,  is  indispen- 
sable.     Thompson  v.  Cumming,  2  Leigh  321. 

By  whom  presentment  for  acceptance  may  be  made. — A  mo- 
tion was  made  to  the  court  in  Nelson  v.  Fotterall,  7  Leigh  179.  to  in- 
struct the  jury  that  the  notarial  presentment  of  a  foreign  bill  of  ex- 
change for  acceptance,  and  the  notarial  demand  of  acceptance  of  such 
a  bill,  must  be  made  by  the  notary  in  person,  and  that  the  presentment 
thereof,  or  demand  of  acceptance,  made  by  a  clerk,  is  not  sufficient  to 
authorize  the  notary  to  protest  the  bill  for  non-acceptance,  he  having 
personally  neither  seen  nor  sought  for  the  drawee.  But  the  court  re- 
fused to  give  the  instruction  so  asked.  In  the  court  of  appeals,  judge 
Cabell  expressed  the  opinion  that  the  court  below  erred  in  refusing  to  give 
the  instruction.  But  judge  Brockenbrough  thought  it  was  properly  re- 
fused, and  so  did  the  president.  "  It  is  proved,"  he  says,  "  that  there  is  a 
custom  at  Liverpool  that  bills  may  be  demanded  by  a  notary's  clerk.  1 
do  not  see  why  this  may  not  be,  at  least,  with  this  obvious  qualification, 
that  though  the  notary's  authorized  clerk  may  present  the  bill  for  ac- 
ceptance, and  though  the  refusal  to  pay  him  upon  demand  may  justify  a 
protest  by  the  notary,  yet  the  notary's  certificate  is,  in  such  case,  no  evi- 


Declarations  in  debt.  427 

dence  whatever  of  the  facts  of  presentment  and  refusal,  but  they  must  be 
proved  by  the  oaths  of  witnesses  as  other  facts  are." 

To  WHOM  PRESENTMENT  FOR  ACCEPTANCE  MUST  BE  MADE. To  jus- 
tify the  protest  of  a  bill  for  non-acceptance,  the  presentment  for  accept- 
ance should  be  to  the  drawee,  or  his  authorized  agent.  In  Nelson  v. 
Fotterall,  7  Leigh  179.  the  protest  exhibited  by  the  plaintiff,  as  proof  of 
the  presentment  and  dishonour  of  the  bill,  stated  that  the  presentment 
was  made  to  a  clerk  in  the  counting  house  of  the  drawee  and  that  he  re- 
fused to  accept  it.  The  president  and  judge  Cabell  were  of  opinion, 
that  the  defendant  was  entitled  to  an  instruction  that  such  a  presentment 
was  not  sufficient  to  justify  a  protest,  unless  the  clerk  was  authorized  to 
accept  or  refuse. 

At     WHAT     TIME     PROTEST    FOR    NON-ACCEPTANCE    MUST    BE    MADE. 

It  was  insisted  in  Nelson  v.  Fotterall,  7  Leigh  179,  that  it  was  the  duty 
of  the  holders  of  the  bill  at  Liverpool,  on  tuesday  the  27th  of  March 
1827,  when  the  drawee  refused  acceptance  of  the  same,  to  put  it  in  the 
hands  of  a  notary  public  for  prote^,  without  waiting  till  the  next  day  ; 
unless  prevented  by  inevitable  accident.  It  appeared  in  the  case  that 
fruitless  attempts  were  made  by  the  clerk  of  the  holder  to  find  the 
drawee  at  his  counting  room  on  Saturday  the  24th  of  March,  (the  very 
day  when  the  bill  arrived  in  Liverpool,)  and  on  monday  the  26th;  that 
on  the  27th,  diligent  search  was  made  by  the  holder  himself  at  the  ex- 
change, the  brokers'  offices,  and  the  news  room,  at  which  places  the 
drawee  did  most  of  the  little  business  which  he  transacted  ;  and  that,  in 
consequence  of  these  searches  and  enquiries,  the  drawee  at  length  made 
his  appearance  at  the  house  of  the  holder,  when  the  bill  was  presented 
to  him  and  he  refused  to  accept.  The  protest  for  non-acceptance  was 
on  the  28th  of  March  1827.  It  was  the  opinion  of  the  circuit  court 
that  the  evidence  ought  to  be  submitted  to  the  jury  for  them  to  deter- 
mine, whether  the  business  hours  of  the  day,  on  which  acceptance  of 
the  bill  was  refused,  had  not  then  elapsed,  or  so  nearly  elapsed  that  the 
bill  could  not  be  put  in  the  hands  of  the  notary  on  that  day  within  the 
business  hours  thereof,  and,  if  the  fact  was  so,  that  the  protest  of  said 
bill  on  the  day  following,  was  legal  and  regular.  This  opinion  was  sus- 
tained by  the  court  of  appeals. 

Upon  refusal  to  accept,  right  to  sue  drawer  or  endorser. — 
A  refusal  to  accept  is  a  breach  of  the  contract  of  the  drawer,  and  upon 
such  refusal  a  right  of  action  accrues  to  the  payee  or  endorsee  against 
the  drawer,  although  the  time  limited  by  the  bill,  for  its  payment,  may 
not  have  arrived.  Evans  v.  Gee,  1 1  Peters  80.  Every  endorser  is  upon 
the  same  footing  with  the  drawer.     S.  C. 

Drawee  liable  also,  if  he  had  promised  to  accept. — In  the 
case  of  Coolidge  and  others  v.  Payson  and  others,  2  Wheat.  66.  the  su- 
preme court  of  the  United  States,  upon  a  review  of  the  cases,  came  to 
the  conclusion  that  a  letter  written  within  a  reasonable  time  before  or 
after  the  date  of  a  bill  of  exchange,  describing  it  in  terms  not  to  be 
mistaken,  and  promising  to  accept  it,  is,  if  shewn  to  the  person  who  af- 
terwards takes  the  bill  on  the  credit  of  the  letter,  a  virtual  acceptance 
binding  the  person  who  makes  the  promise. 

The  cases  of  Schimmelpennick  Sfc.  v.  Bayard  S^c.  1  Peters  285,  and 
Boyce  S^'c  v.  Edwards,  4  Peters  111.  were  considered  not  to  be  brought 


428  Declarations  in  debt. 

within  this  rule.  I^  the  last  case  the  letter  did  not  describe  any  parti- 
cular bill  in  terms  not  to  be  mistaken.  And  it  had  no  reference  what- 
ever to  the  particular  bill  on  which  the  action  was  brought.  The  court 
therefore  held,  that  the  action  on  the  bill,  as  an  accepted,  bill  could  not 
be  sustained.  At  the  same  time,  the  opinion  was  expressed  that  the  evi- 
dence was  very  strong  to  sustain  an  action  upon  a  count  framed  on  the 
breach  of  the  promise  to  accept. 

Demand  at  place  of  payment  not  necessary  to  charge  ac- 
ceptor OF  BILL  or  maker  OF  NOTE. — When  a  promissory  note,  or  a 
bill  of  exchange,  is  payable  at  a  particular  place,  it  is  necessary  in  Eng- 
land, to  aver,  and  prove,  a  presentment  at  the  place,  though  the  action 
be  against  the  maker  or  acceptor.  Rowe  v.  Young,  2  Brod.  &  Bingh. 
165.  6  Eng.  Com.  Law  Rep.  58.  2  Bligh.  O.  S.  391.  Benson  v.  White, 
4  Dow.  334.  Williams  v.  Waring,  10  Barn.  &,  Cress.  21.  21  Eng.  Com. 
Law  Rep.  1.  Gihb  v.  Mather  S^c.  21  Eng.  Com.  Law  Rep.  277.  But 
in  the  United  States,  it  is  settled  otherwise.  The  decisions  of  the  courts 
of  the  different  states,  were  reviewed  by  the  supreme  court  of  the  Uni- 
ted States,  at  January  term  1839,  in  the  case  of  Wallace  v.  3I'Connell, 
13  Peters  136.  Those  decisions  appearing  to  be  uniform  that  in  an  ac- 
tion on  a  promissory  note  or  bill  of  exchange,  where  the  suit  is  against 
the  maker  in  the  one  case,  or  against  tTie  acceptor  in  the  other,  it  is  not 
necessary  to  aver,  or  prove,  a  presentment  at  the  place;  the  supreme 
court  thought  it  would  be  inexpedient  to  change  the  rule,  even  if  the 
grounds  upon  which  it  was  established  had  been  deemed  questionable, 
which  however  it  did  not  mean  to  intimate. 

In  November  1839,  the  question  was  before  the  court  of  appeals  of 
Virginia,  in  the  case  of  Armistead  v.  Armistead,  not  yet  reported,  and 
the  decision  was  the  same  way. 

But  NECESSARY  TO  CHARGE  ENDORSER. — When  the  suit  is  against 
the  endorser  of  a  note  made  payable  at  a  particular  place,  it  is  neces- 
sary to  charge  him,  that  there  should  be  presentment  at  the  time  and 
place,  and  payment  then  and  there  demanded.  Watkins  v.  Crouch  4* 
Co.  5  Leigh  522. 

No  formal  demand  is,  however,  necessary  for  payment  of  a  note  pay- 
able at  a  particular  bank,  when  the  bank  is  itself  the  holder  of  the  note, 
and  the  note  is  in  the  bank  when  it  becomes  due.  Bank  of  the  United 
States  V.  Carneal,  2  Peters  542. 

When  demand  must  be  made. — The  allowance  of  days  of  grace,  is 
a  usage,  which  pervades  the  whole  commercial  world.  It  is  now  uni- 
versally understood  to  enter  into  every  bill  or  note,  of  a  mercantile  cha- 
racter, and  to  form  so  completely  a  part  of  the  contract,  that  the  bill 
does  not  become  due,  in  fact,  or  in  law,  on  the  day  mentioned  on  its 
face,  but  on  the  last  day  of  grace.  A  demand  of  payment  previous  to 
that  day,  will  not  authorize  a  protest,  or  charge  the  drawer  of  the  bill. 
Marshall  C.  J.  delivering  opinion  of  court  in  The  Bank  of  Washing- 
ton V.  Triplett  S^  Neale,  1  Peters  31. 

According  to  the  general  rules  of  law,  the  third  day  after  that  men- 
tioned in  the  bill  or  note  as  the  day  on  which  it  becomes  payable,  is  the 
last  day  of  grace,  unless  the  third  day  be  a  day  on  which  either  the  law 
or  custom  has  established  "  that  no  money  is  to  be  paid ;"  and  then  the 
second  is  the  last  day  of  grace.    The  same  custom  of  merchants,  which, 


Declarations  i7i  debt,  429 

as  a  general  rule,  allows  three  days  of  grace  to  the  debtor,  has  limited 
that  indulgence  to  two  days  in  those  cases  where  the  third  is  not  a  day 
for  the  transaction  of  business.  Opinion  of  court  in  Salter  v.  Burt,  20 
Wend.  206. 

In  Jackson  v.  Richards,  2  Caines's  Rep.  343.  the  third  day  was  sun- 
day  and  the  demand  was  not  made  till  monday.  The  opinion  of  the 
court  was  that  where  the  third  day  is  Sunday,  demand  must  be  made  on 
the  second  day. 

In  Lewis  v.  Burr,  2  Caines's  Cas.  195.  the  third  day  was  the  fourth 
of  July.  The  jurors  found  that  the  fourth  of  July  in  each  year  is  the 
anniversary  day  of  the  declaration  of  the  independence  of  these  United 
States,  and  for  that  reason  is  in  practice,  though  not  by  law,  generally 
observed  by  the  citizens  of  the  state  of  New  York,  as  a  public  festival  ; 
and  also  that  some  time  in  the  month  of  May  1784,  upon  the  institution 
of  the  bank  of  New  York,  which  does  no  business  on  any  fourth  day  of 
July,  it  became,  and  since  continually  has  been,  and  still  is,  a  general 
practice  and  usage,  in  the  city  of  New  York,  for  the  holder  of  a  pro- 
missory note,  made  by  one  person  and  endorsed  by  another,  if  the  same 
become  payable  (allowing  three  days  of  grace)  on  the  4th  day  of  July, 
in  any  year,  to  demand  payment  from  the  maker  of  such  note,  of  the 
sum  therein  mentioned,  on  the  3d  day  of  the  same  July,  and  if  he  refuse 
to  pay  the  same,  or  if  he- cannot  be  found,  to  the  end  that  payment  may 
be  demanded  of  him,  and  if  the  said  holder  shall  be  minded  to  look  to 
the  said  endorser  for  payment  of  the  said  note ;  then  forthwith,  that  is 
to  say,  on  the  same  3d  day  of  July,  to  give  notice  to  the  said  endorser, 
of  such  refusal  to  pay  the  sum  mentioned  in  the  said  note,  or  that  the 
maker  thereof  cannot  be  found,  to  the  end  that  payment  may  be  de- 
manded of  him,  and  also  that  it  is  the  intention  of  the  said  holder  to 
look  to  the  said  endorser  for  the  payment  of  the  said  sum.  The  su- 
preme court  of  Neic  York  held  that  the  custom  found  by  the  jury  was  to 
prevail  and  the  contract  be  governed  by  it. 

There  may  be  a  settled  usage  at  a  particular  bank,  or  in  a  particular 
place,  to  demand  payment  on  a  later  day  than  the  third :  and  when  such 
usage  is  ascertained  to  exist,  it  will  be  respected. 

In  Renner  v.  The  Bank  of  Columbia,  9  Wheat.  581.  the  supreme 
court  of  the  United  States  decided  that  where  a  note  is  made  for  the 
purpose  of  being  negotiated  at  a  bank,  whose  custom,  known  to  the  par- 
ties, it  is  to  demand  payment  and  give  notice  on  the  fourth  day  of  grace, 
that  custom  forms  a  part  of  the  law  of  such  contract,  at  least  so  far  as 
to  bind  their  rights. 

Upon  the  principles  and  reasoning  of  that  case,  the  same  court  in 
3Iills  V.  The  Bank  of  the  United  States,  11  Wheat.  438.  carae  to  the 
conclusion  that  when  a  note  is  made  payable  or  negotiable  at  a  bank 
whose  invariable  usage  it  is,  to  demand  payment  and  give  notice  on 
the  fourth  day  of  grace,  the  parties  are  bound  by  that  usage,  whether 
they  have  a  personal  knowledge  of  it  or  not.  In  the  case  of  such  a  note, 
the  parties  are  presumed  by  implication  to  agree  to  be  governed  by  the 
usage  of  the  bank  at  which  they  have  chosen  to  make  the  security  itself 
negotiable. 

In  the  case  of  The  Bank  of  Washington  v.  Triplett  Sf  Neale,  1  Pe- 
ters 25.  the  question  was  as  to  a  bill  drawn  at  Alexandria  on  a  person 


430  Declarations  in  debt, 

residing  at  Washington,  and  the  opinion  of  the  court  was  as  follows : 
"  The  usage  of  the  place  on  which  the  bill  is  drawn,  or  where  payment 
is  to  be  demanded,  uniformly  regulates  the  number  of  days  of  grace 
which  must  be  allowed.  This  bill  being  drawn  on  a  person  residing  in 
Washington,  and  being  protested  for  non-payment  in  the  same  place,  is, 
according  to  the  law  merchant,  to  be  governed  by  the  usage  of  Wash- 
ington," 

In  an  action  upon  a  bill  or  note,  the  payment  of  which  has  been  de- 
manded on  the  fourth  day,  it  is  advisable  to  allege  the  usage  in  the  de- 
claration. In  Jackson's  adm'rv.  Henderson  Sfc.  3  Leigh  196.  it  was  al- 
leged that  when  the  bill  became  due  and  payable  according  to  the  tenour 
and  effect  thereof,  it  was  presented  for  payment  and  payment  demanded, 
but  the  acceptor  failed  to  make  payment,  by  means  whereof  the  defen- 
dant (who  was  an  endorser)  became  liable  to  pay,  according  to  the  usage 
and  custom  of  merchants.  At  the  trial  it  appeared  that  the  bill  was  pre- 
sented, and  demand  of  payment  made,  on  the  27th  of  December  1816, 
which  was  the  fourth  day  after  the  expiration  of  the  180  days  limited  in 
the  bill  for  payment.  The  defendant  moved  the  court  to  instruct  the 
jury  that  the  said  180  days,  and  three  days  of  grace,  having  expired  be- 
fore the  27th  of  December,  the  demand  then  made,  was  not  a  good  and 
sufficient  demand  of  the  bill  and  for  want  of  a  good  and  sufficient  de- 
mand, the  defendant  was  discharged  from  liability  on  his  endorsement. 
The  circuit  court  refused  this  instruction.  But  the  court  of  appeals 
held  that  it  ought  to  have  been  given.  Tucker,  P.  said,  "  The  scilicet, 
being  rejected,*  the  declaration  states  the  case  of  a  presentment  '  when 
the  bill  became  due  and  payable,  that  is,  on  the  third  day  of  grace ;  for, 
as  no  custom  is  stated,  the  general  law  merchant  must  be  intended ;  and 
as  the  evidence  proved  the  presentment  on  the  fourth  day  instead  of 
the  third,  it  neither  supported  the  declaration,  nor  shewed  a  cause  of 
action." 

Protest  of  foreign  bill,  evidence  of  dishonour. — In  the  case  of 
Totcnsley  v.  Sumrall,  2  Peters  170.  the  bill  was  drawn  in  Kentucky  and 
payable  at  Neio  Orleans  in  Louisiana.  It  was  argued  that  this  was  an 
inland  bill,  and  that  a  notarial  protest  was  not,  in  such  case,  evidence  of 
dishonour.  But  it  was  decided  otherwise.  The  court  say  "  that  by  the 
general  custom  of  merchants  in  the  United  States,  bills  of  exchange 
drawn  in  one  state  on  another  state  are,  if  dishonoured,  protested  by  a 
notary ;  and  the  production  of  such  protest  is  the  customary  document 
of  the  dishonour.  It  is  a  practice  founded  in  general  convenience,  and 
has  been  adopted  for  the  same  reasons  which  apply  to  foreign  bills  in 
the  strictest  sense." 

In  Halliday  v.  M'Dougall  S^c.  20  Wend.  81.  the  drawers  and  drawees 
residing  in  different  states  of  the  Union,  the  bill  was  regarded  as  a  fo- 
reign bill,  and  the  protest  of  the  notary  was  considered  to  prove  itself. 
What  it  contained  as  to  the  presentment  and  refusal  was  received  as 
true. 

Though  the  protest  of  a  foreign  bill,  under  a  notarial  seal,  is  evidence 
of  dishonour,  yet  the  facts  which  it  states  in  relation  to  the  dishonour 
may  nevertheless  be  controverted  by  other  evidence.     The  protest  is 

*  See  the  decision  on  that  point  stated  ante,  p.  402,  3. 


Declarations  in  debu  431 

only  prima  facie  evidence  of  such  facts,  not  conclusive.     Nelsoti   v. 
Fotterall,  7  Leigh  180. 

Due  notice  of  dishonour  necessary  to  charge  endorser  of 
NOTE  OR  DRAWER  OR  ENDORSER  OF  A  BILL. — If  the  holder  fail  to  givc 
due  notice  of  dishonour  to  the  drawer  or  endorsers  of  a  bill,  or  the  en- 
dorsers of  a  negotiable  note,  his  laches  will  operate  to  discharge  them 
from  responsibility.  Wood  v.  Carr's  ex'ors,  1  Call  232.  Turner  v. 
Leech,  4  Barn.  &l  Aid.  451.  6  Eng.  Com.  Law  Rep.  484. 

Whether  there  has  been  due  notice  of  dishonour,  is  a  question  which 
often  arises.  Many  decisions  on  the  subject  are  referred  to  by  rar.  jus- 
tice Baldmn,  in  his  opinion  in  the  late  case  of  Dickens  v.  Beal,  10  Pe- 
ters 5T2. 

How  SOON  NOTICE  IS  TO  BE  GIVEN. — The  general  rule  is,  that  each 
party  must  give  notice  of  dishonour  as  soon  as  he  reasonably  can ;  and 
this  reasonable  time  is  a  question  of  law  depending  upon  the  circum- 
stances of  each  case.  Carr,  J.  in  Brmcn  ^  Sons  v.  Ferguson,  4  Leigh 
50. 

It  has  been  contended  that  notice  could  not  be  given  on  the  same  day 
that  the  bill  or  note  became  due,  upon  the  ground  that  the  acceptor  or 
maker  had  the  whole  day  to  make  payment.  But  it  was  settled  other- 
wise, in  the  two  following  cases. 

In  Bussard  v.  Levering,  6  Wheat.  102.  the  defendant  was  sued  as 
drawer  of  an  inland  bill,  payable  at  Baltimore.  Evidence  was  given 
that  after  bank  hours,  on  Saturday  the  fifth  of  April  1817,  being  the  se- 
cond day  of  grace  after  the  said  bill  became  due,  the  same  was  presented 
by  a  notary  to  the  acceptor  for  paj'ment,  and,  not  being  paid,  was  duly 
protested.  On  the  same  day  written  notice  was  sent  by  the  mail  to  the 
defendant,  residing  at  Georgetown,  D.  C.  notifying  him  of  the  non-pay- 
ment and  protest  of  the  bill.  And  it  was  shewn  that  such  protest  and 
notice,  on  the  second  day  of  grace,  under  those  circumstances,  was  con- 
formable to  the  general  usage  in  Baltimore.  The  supreme  court  of  the 
United  States  was  unanimously  of  opinion  that  by  the  general  law  mer- 
chant, notice  of  non-payment  given  to  the  drawer  on  the  last  day  of 
grace  after  a  demand  upon  the  acceptor  on  the  same  day  (and  Saturday 
in  this  case  was  the  last  day  of  grace,  the  next  day  being  Sunday),  was 
sufficient  to  charge  the  drawer  :  and  that  the  notice  in  this  case  given  to 
the  drawer  by  putting  the  same  into  the  post  office,  was  good. 

In  Lindenberger  <^c.  v.  Beall,  6  Wheat.  104.  the  defendant  was  sued 
as  endorser  of  a  negotiable  note,  and  evidence  was  given  by  the  notary 
that  the  note  was  by  him  demanded  of  the  drawer  on  the  third  day  of 
grace,  and,  not  being  paid,  notice  of  the  non-payment  was  enclosed  in  a 
letter  addressed  to  the  defendant  at  the  city  of  Washington,  and  put  into 
the  post  office  at  Georgetown.  The  supreme  court  was  unanimously  of 
opinion  that  after  demand  of  the  maker  on  the  third  day  of  grace,  notice 
to  the  endorser  on  the  same  day  was  sufficient  by  the  general  law  mer- 
chant ;  and  that  evidence  of  the  letter,  containing  notice,  having  been 
put  into  the  post  office,  directed  to  the  defendant  at  his  place  of  resi- 
dence, was  sufficient  proof  of  the  notice  to  be  left  to  the  jury,  and  that 
it  was  unnecessary  to  give  notice  to  the  defendant  to  produce  the  letter 
before  such  evidence  could  be  admitted. 

These  decisions  only  shew  that  notice  may  be  given  on  the  last  day 
of  grace  ;  not  that  it  must  be  given  on  that  day. 


432  Declaratiom  in  debt. 

It  is  sufficient  to  give  notice  the  next  day,  to  a  party  living  in  the  same 
town,  or  to  send  notice  by  the  mail  of  the  next  day,  to  a  party  living 
elsewhere.  Darheshire  S^c.  v.  Parker,  G  East  3.  Lenox  S^c.  v.  Ro- 
berts, 2  Wheat.  373.  And  if  the  next  day  be  Sunday,  notice  may  be 
given  on  monday  or  sent  by  monday'spost.  So  if  the  next  day,  instead 
of  being  sunday,  be  the  fourth  of  July,  the  holder  is  excused  from  giving 
notice  on  that  day,  and  may  give  it  on  the  fifth.  Cuyler  v.  Stevens,  4 
Wend.  566. 

Each  party,  through  whose  hands  the  dishonoured  bill  may  have 
passed,  is  allowed  one  entire  day,  for  the  purpose  of  giving  notice. 

In  Bray  d^c.  v.  Hadwen,  5  M.  d6  S.  68.  it  appeared  that  Glyn  S^  Co. 
received  notice  at  Launcetson  on  the  morning  of  sunday  the  17th,  and 
put  into  the  post  on  monday,  a  letter  containing  a  notice,  to  the  plaintiffs 
at  Tavestock.  But  as  the  post  left  Launcetson  at  twelve  at  noon,  and  the 
letter  was  not  put  in  until  after  twelve,  it  did  not  go  from  Launcetson  till 
tuesday  at  twelve.  The  court  of  king's  bench  Ac/rf  that  Glyn  Sf  Co.  had 
the  whole  of  monday  to  put  their  letter  in  the  post,  and  that  the  notice 
was  therefore  good. 

In  Hawkes  S^c.  v.  Salter,  4  Bingh.  715.  15  Eng.  Com.  Law  Rep.  125. 
it  appeared  that  the  bill  was  dishonoured  at  Norwich  on  Saturday ;  that 
the  post  left  Norwich  for  North  Walsham,  where  the  drawer  lived,  at 
half  after  nine  in  the  morning ;  and  that  no  notice  was  sent  by  monday's 
post.  Best,  C.  J.  expressed  himself  clearly  of  opinion,  that  it  would 
have  been  sufficient  if  the  letter  had  been  put  into  the  post  office  before 
the  mail  started  on  the  tuesday  morning ;  but  there  was  no  sufficient 
evidence  that  it  had  been  put  in,  even  on  tuesday  morning. 

In  Geill  v.  Jeremy  S^c.  1  Mood.  &  Malk.  61.  22  Eng.  Com.  Law  Rep. 
249.  it  appeared  that  the  plaintiff  received  notice  at  nine  o'clock  in  the 
morning  of  thursday ;  that  the  post  left  the  village  where  he  resided  at 
six  that  evening,  and  the  mail  bags  were  not  made  up  at  Chorlcy  (two 
miles  off)  till  nine  in  the  evening;  but  the  plaintiff  did  not  write  by  that 
post,  and  there  being  no  post  on  friday,  he  did  not  write  till  Saturday. 
Lord  Tenterden,  C.  J.  said,  "  In  these  cases,  it  is  of  great  importance 
to  have  a  fixed  rule,  and  not  to  resort  to  nice  questions  of  the  sufficiency, 
in  each  particular  case,  of  a  certain  number  of  hours  or  minutes.  The 
general  rule  is,  that  the  party  need  not  write  on  the  very  day  that  he  re- 
ceives the  notice.  If  there  be  no  post  on  the  following  day,  it  makes 
no  difference :  the  next  day  after  the  day  on  which  he  receives  the  no- 
tice is  soon  enough." 

Each  party  has  a  full  day  to  give  notice,  but  not  so  that  the  over  dili- 
gence of  one  shall  be  made  to  supply  the  under  diligence  of  another. 
Carr,  J.  in  Brown  S^  Sons  v.  Ferguson,  4  Leigh  50. 

In  Brown  £f  Sons  v.  Ferguson,  the  bill  was  drawn  at  Baltimore,  by 
Ferguson,  on  Foster  Sf  Moore  of  Norfolk,  in  favour  of  M' Donald  S^ 
Son  of  Baltimore,  by  whom  it  was  endorsed.  Brown  ^  Sons  of  Bal- 
timore, being  the  holders,  filled  up  the  endorsement  to  W.  <^  J.  Cum- 
mings  of  Petersburg,  to  whom  they  sent  the  bill  for  collection.  W.  Sf 
J.  Cummings  endorsed  it  to  Wilder,  cashier  of  the  bank  of  Virginia  at 
Petersburg,  who  endorsed  it  to  Williamson,  cashier  of  the  same  bank 
at  Norfolk.  The  facts  found  by  the  special  verdict,  in  relation  to  no- 
tice, were  substantially  these :  The  bill  was  presented  on  the  3d  April, 


Declarations  in  debt.  433 

and  returned  to  the  bank  at  Norfolk  on  the  4th.  By  the  next  mail, 
which  left  Norfolk  on  the  5th,  notice  of  the  dishonour  was  forwarded  to 
Wilder,  which  reached  hira  on  the  7th.  Thus  far,  all  was  regular.  But 
the  jury  did  not  find  when  Wilder  gave  notice  to  W.  4'  J-  Cummings, 
nor  when  they  gave  notice  to  Brown  4*  Sons.  The  fact  was  found  that 
there  was  a  daily  mail  from  Petersburg  to  Baltimore,  reaching  the  lat- 
ter place  in  about  45  hours,  and  that  Brown  S^  Sons  gave  Ferguson  no- 
tice on  the  12th  at  Baltimore,  saying,  "  Your  draft  &c.  is  this  day  re- 
turned under  protest  for  non-payment."  Hence  it  seemed  correct  to 
conclude  that  there  must  have  been  a  delay  of  24  hours  more  than  there 
ought  to  have  been,  in  the  arrival  of  the  notice  at  Baltimore :  for  Wil- 
der, receiving  notice  on  the  7th,  was  bound  to  give  it  to  W.  Sf  J.  Cum- 
mings on  the  8th,  and  they  ought  t )  have  given  it  to  Brown  S^  Sons  by 
the  mail  of  the  9th;  which,  if  they  had  done,  it  would  have  reached 
Baltimore  on  the  11th;  whereas,  no  notice  was  in  fact  received  by 
Brown  6^  Sons  at  Baltimore,  till  the  12th.  Brown  S^  Sons,  it  is  true, 
gave  immediate  notice  to  Ferguson  on  the  same  day.  Yet  this  over  dili- 
gence on  their  part  could  not  cure  the  want  of  due  diligence  in  any  of  the 
parties  standing  before  them.     And  Ferguson  was  held  to  be  discharged. 

In  what  terms  the  notice  is  to  be  expressed. — In  3Iills  v. 
The  Bank  of  the  United  States,  11  Wheat.  431.  the  notice  addressed  to 
Mills  was  in  these  words  :  "  Chilicothe,  22d  of  September  1819.  Sir, 
you  will  hereby  take  notice  that  a  note,  drawn  by  Wood  ^  Ebert,  dated 
20th  day  of  September  1819,  for  3600  dollars,  payable  to  you  or  order, 
in  sixty  days,  at  the  office  of  discount  and  deposite  of  the  bank  of  the 
United  States  at  Chilicothe,  and  on  which  you  are  endorser,  has  been 
protested  for  non-payment  and  the  holders  thereof  look  to  you.  Yours 
respectfully.  Levin  Belt,  mayor  of  Chilicothe."  The  court  below, 
charged  the  jury,  first,  that  the  notice  was  sufficient  to  charge  the  en- 
dorser, although  it  did  not  name  the  person  who  was  holder  of  the  note, 
nor  state  that  a  demand  had  been  made  at  the  bank  when  the  note  was 
due ;  and  secondly,  that  although  the  note  in  controversy  was  dated 
the  20th  of  July  1819,  and  was  payable  sixty  days  after  date,  yet  if  the 
jury  should  find  that  there  was  no  other  note  payable  in  the  office  at 
Chilicothe,  drawn  by  Wood  S^  Ebert,  and  endorsed  by  defendant,  ex- 
cept the  note  in  controversy,  the  mistake  in  the  date  of  the  note,  made 
by  the  notary,  in  the  notice  given  to  that  defendant,  did  not  impair  the 
liability  of  the  said  defendant.  In  this  opinion  of  the  court  below,  the 
supreme  court  decided  there  was  no  error. 

In  The  Bank  of  the  United  States  v.  Corneal,  2  Peters  553.  a  suor- 
gestion  was  made  at  the  bar,  that  a  letter  to  the  endorser,  stating  the 
demand  and  dishonour  of  the  note,  is  not  sufficient,  unless  the  party 
sending  it  also  informs  the  endorser  that  he  is  looked  to  for  payment. 
In  the  opinion  of  the  court  delivered  by  judge  Story,  it  is  said,  "  When 
such  notice  is  sent  by  the  holder,  or  by  his  order,  it  necessarily  implies 
such  a  responsibility  over.  For  what  other  purpose  could  it  be  sent? 
We  know  of  no  rule  that  requires  any  formal  declaration  to  be  made  to 
this  effect.  It  is  sufficient,  if  it  may  be  reasonably  inferred  from  the 
nature  of  the  notice." 

55 


434  Declarations  in  debt. 

The  cases  in  the  english  courts,  in  which  the  language  to  be  used  in 
the  notice  has  been  a  subject  of  consideration,  have,  most  of  them,  oc- 
curred since  these  decisions  of  the  supreme  court. 

In  Hartley  v.  Case,  4  Barn.  &  Cress.  339.  10  Eng.  Com.  Law  Rep. 
350.  the  action  was  by  an  endorsee  against  the  drawer  of  a  bill  of  ex- 
change, bearing  date  the  13th  of  April  1824,  payable  four  months  after 
date,  accepted  by  R.  J.  Case,  the  elder.  To  prove  notice  to  the  defen- 
dant of  the  dishonour  of  the  bill,  the  plaintiff  gave  in  evidence  a  letter 
from  himself  to  the  defendant,  dated  the  16th  of  August  1824,  the  day 
on  which  the  bill  became  due,  in  these  words :  "  I  am  desired  to  apply 
to  you  for  the  payment  of  the  sum  of  £  150.  due  to  myself  on  a  draft 
drawn  by  mr.  Case  on  mr.  Case,  which  I  hope  you  will  on  receipt  dis- 
charge, to  prevent  the  necessity  of  law  proceedings  which  otherwise 
will  immediately  take  place."  At  the  trial,  the  notice  not  being  deemed 
sufficient,  the  plaintiff  was  non-suited.  Afterwards  a  rule  was  obtained 
for  setting  aside  the  non-suit,  on  which  occasion  the  judgment  of  the 
court  of  king's  bench  was  delivered  by  Abbott,  C.  J.  as  follows :  "  There 
is  no  precise  form  of  words  necessary  to  be  used  in  giving  notice  of  the 
dishonour  of  a  bill  of  exchange,  but  the  language  used  must  be  such  as 
to  convey  notice  to  the  party  what  the  bill  is,  and  that  payment  of  it  has 
been  refused  by  the  acceptor.  Here  the  letter  in  question  did  not  con- 
vey to  the  defendant  any  such  notice;  it  does  not  even  say  that  the  bill 
was  ever  accepted.  We  therefore  think  the  notice  was  insufficient  and 
the  rule  for  a  new  trial  must  be  discharged." 

Solarte  S^c.  v.  Palmer  S^c.  was  a  suit  by  the  assignees  of  an  endorsee 
who  became  bankrupt  against  the  endorser  of  a  bill  which  was  accepted 
and  not  paid  at  maturity.  The  plaintiffs  caused  to  be  written  by  messrs. 
J.  S^  S.  Pearce,  their  attorneys  at  law,  the  following  letter  to  the  defen- 
dants :  "  17th  Dec.  1825.  Gent.  A  bill  for  =£683.  drawn  by  mr.  Joseph 
Keats  upon  messrs.  Daniel  Jones  Sf  Co.  and  bearing  your  endorsement, 
has  been  put  into  our  hands,  by  the  assignees  of  J.  R.  Alzedo,  with  di- 
rections to  take  legal  measures  for  the  recovery  thereof  unless  immedi- 
ately paid  to,  Gentlemen,  Yours  &c.  J.  and  S.  Pearce."  Addressed, 
"  messrs.  Palmer  and  JBouch."  Which  letter  was  on  the  said  17th  of  De- 
cember, by  the  directions  and  on  behalf  of  the  plaintiffs,  sent  to  and  re- 
ceived by  the  defendants.  Lord  Tenterden  directed  the  jury  that  this 
letter  was  not  sufficient  notice  of  the  dishonour  and  non-payment  of  the 
bill,  and  the  court  of  exchequer  chamber  decided  that  the  direction  was 
proper,  and  affirmed  the  judgment  which  had  been  given  for  the  defen- 
dants. Tindal,  C.  J.  in  delivering  the  judgment,  said,  "  The  notice 
should  at  least  inform  the  party  to  whom  it  is  addressed,  either  in  ex- 
press terms  or  by  necessary  implication,  that  the  bill  has  been  disho- 
noured, and  that  the  holder  looks  to  him  for  payment  of  the  amount.  It 
is  perfectly  consistent  with  this  letter  that  the  bill  has  never  been  pre- 
sented at  all  and  that  the  plaintiff  means  to  rely  upon  some  legal  excuse 
for  the  non-presentment.  It  may  not  improbably  have  been  written  with 
a  different  intent  than  that  of  giving  notice  of  the  dishonour  to  the  en- 
dorser, and  may  have  been  information  that  an  action  was  about  to  be 
brought  by  the  attorney,  taking  for  granted  that  the  notice  of  the  bill's 
dishonour  had  been  given  in  the  ordinary  way  before  the  bill  was  put 
into  his  hands  for  the  purpose  of  suing  thereon.    At  all  events,  however 


Declarations  in  debt.  435 

intended,  it  appears  to  us  not  to  amount  to  such  notice."  See  7  Bingh. 
530.  20  Eno.  Com.  Law  Rep.  226. 

From  this  decision,  in  which  the  judges  were  unanimous,  an  appeal 
was  taken  to  the  house  of  lords,  and  the  judges  were  there  summoned  to 
hear  the  argument.  Williams,  Bolland,  Alderson,  Patteson,  Taunton, 
Littledale,  Vaughan,  Gaselee  and  Park  attended,  and  the  question 
being  put  to  them  as  to  the  sufficiency  of  the  notice,  their  opinion  deli- 
vered by  Park,  J.  was  unanimous  against  it.  The  following  day,  lord 
Brougham  delivered  the  judgment  of  the  house  of  lords  affirming  the 
judgment  of  the  court  of  exchequer  chamber.  See  1  Bingh.  N.  C.  194. 
27  Eng.  Com.  Law  Rep.  351.     8  Bligh's  Par.  Cas.  N.  S.  874. 

The  cases  of  Martlet/  v.  Case  and  Solarte  Sec  v.  Palmer  Sfc.  governed 
the  decision  in  Boulton  v.  Welsh,  3  Bingh.  N.  C.  688.  32  Eng.  Com. 
Law  Rep.  283.  cited  ante,  p.  118.  where  the  notice  was  as  follows :  "  33 
Northampton  square,  22d  October  1836.  Sir,  The  promissory  note 
for  .£200.  drawn  by  Henry  Hanley,  dated  the  18th  July  last,  payable 
three  months  after  date,  and  endorsed  by  you,  became  due  yesterday 
and  is  returned  to  me  unpaid.  I  therefore  give  you  notice  thereof  and 
request  you  will  let  me  have  the  amount  thereof  forthwith.  W.  J.  Boul- 
ton.^' A  verdict  was  taken  for  the  plaintiff  with  leave  for  the  defendant 
to  move  to  enter  a  nonsuit,  and  a  rule  being  obtained  accordingly,  the 
court  of  common  pleas  made  it  absolute.  Tindal,  C.  J.  said,  "  I  do  not 
see  how  it  is  possible  to  escape  from  the  rule  established  by  the  two  de- 
cided cases  without  resorting  to  such  subtle  distinctions  as  would  make 
the  rule  itself  useless  in  practice.  Here  the  notice  only  states  that  the 
note  became  due  and  was  returned  impaid.  These  facts  are  compatible 
with  an  entire  omission  to  present  the  note  to  the  maker." 

Drawer   of   bill,    having  no  effects  in  drawee's  hands,   not 

discharged  by  failure  to  make    presentment  or  give  notice. 

Many  cases  establish  that  notice  of  dishonour,  need  not  be  given  to  a 
drawer  who  has  no  effects  in  the  hands  of  the  drawee.  The  rule  and 
the  modifications  of  it,  are  stated  by  mr.  justice  Baldwin  in  the  opinion 
which  he  delivered  in  the  case  of  Dickins  v.  Bcal,  10  Peters  577,  8. 

The  reason  assigned  for  this  rule  is,  that  the  drawer,  in  such  a  case, 
is  in  no  respect  prejudiced  by  want  of  such  notice,  having  no  remedy 
against  any  other  party  on  the  bill.  The  reason  equally  applies  to  want 
of  presentment  for  payment,  since,  if  the  bill  were  presented  and  paid 
by  the  drawee,  the  drawer  would  become  indebted  to  him  in  the  amount, 
instead  of  being  indebted  to  the  holder  of  the  bill,  and  would  be  in  no 
way  benefitted  by  such  presentment  and  payment.  Terry  S^'c.  v.  Parker, 
6  Ad.  &  E.  502.  33  Eng.  Com.  Law  Rep.  129. 

Nor  can  objectiOxV  of  want  of  notice  be  made  by  endorser  who 
deceives  holder  by  representing  bill  will  be  accepted,  when  he 
KNOWS  IT  WILL  NOT. — It  has  been  decided  that  an  endorser  who  unites 
with  the  drawer  to  deceive  the  holder,  by  representing  a  bill  as  one  that 
will  probably  be  accepted,  with  a  knowledge  that  it  will  not,  is  guilty  of 
a  fraud  which  deprives  him  of  the  right  to  insist  upon  notice.  In  the 
case  of  The  Farmers  Bank  v.  Vanmeter,  4  Rand.  553.  the  endorser  filed 
a  bill  stating  that  the  bill  of  exchange  was  drawn  and  endorsed  for  the 
accommodation  of  the  maker,  for  the  purpose  of  procuring  a  discount 
at  the  bank ;  and  that  there  was  no  expectation  that  it  would  be  paid  by 


436  Decla7'ations  in  debt. 

the  drmcee ;  and  the  answer  of  the  bank,  sworn  to  by  the  cashier,  sta- 
ted that  if  these  facts  had  been  known,  at  the  time  of  the  discount, 
the  bill  would  not  have  been  discounted.  The  court  was  of  opinion, 
that  the  transaction  was  such  a  fraud  upon  the  bank  that  the  endorser 
could  not  object  the  want  of  notice,  either  of  non-acceptance  or  non- 
payment. 

But  mere  knowledge  that  bill  avill  not  be  paid,  does  not  dis- 
pense WITH  notice. — But  the  mere  knowledge  of  the  drawer  or  endor- 
ser before  the  bill  is  payable,  that  it  will  not  be  paid,  does  not  dispense 
with  the  necessity  of  notice  of  dishonour.  Until  such  notice  is  re- 
ceived, the  drawer  or  endorser  is  not  to  conclude  that  any  resort  will  be 
had  to  him.  It  is  reasonable  that  he  should  have  notice  that  the  holder 
designs  to  look  to  him,  in  order  that  he  may  have  an  opportunity  of  se- 
curing himself.     Brown  Sf  Sons  v.  Ferguson,  4  Leigh  37. 

What  acknowledgment  is  sufficient  to  dispense  with  other 
PROOF  of  notice. — In  Walker  v.  Laverty  and  Gantley,  6  Munf.  487. 
the  declaration  was  in  debt  against  the  drawer  of  a  bill,  and  alleged  pro- 
test and  notice.  At  the  trial,  which  was  upon  the  general  issue,  the 
plaintiff  introduced  a  witness  who  proved  that  he  applied  to  the  defen- 
dant for  payment  of  the  bill ;  that  the  defendant  acknowledged  that  the 
debt  was  a  just  one,  and  said  he  would  pay  it ;  and  that  nothing  was  said 
in  that  conversation  as  to  his  waiving  notice  or  not.  The  defendant 
moved  the  court  to  instruct  the  jury  that  unless  the  said  acknowledg- 
ment was  made  with  a  knowledge  of  all  the  facts  of  the  case  as  to  laches 
of  the  holders  of  the  said  bill,  the  said  evidence  of  the  acknowledgment 
was  not  to  be  received ;  which  opinion  the  court  refused  to  give,  and  in- 
structed the  jury  that  such  acknowledgment  was  a  waiver  of  all  notice. 
In  the  court  of  appeals,  the  judgment  against  the  defendant  was  af- 
firmed. 

The  court  do  not  state  the  reasons  or  the  authorities  on  which  the 
judgment  is  founded,  but  judge  Carr  in  his  opinion  in  Pate  v.  M'Clure 
Sfc.  4  Rand.  170.  refers  to  several  cases  which  he  considered  sufficient 
to  sustain  the  decision. 

In  Thornton  v.  Wynn,  12  Wheat.  187.  the  supreme  court  of  the 
United  States  proceed  upon  the  ground  that  the  promise  to  pay  must  be 
after  full  knowledge  of  all  the  circumstances  necessary  to  apprise  the 
party  of  his  discharge  from  responsibility,  by  the  laches  of  the  holder. 
The  evidence,  in  this  case,  was,  that  a  few  weeks  before  the  institution 
of  the  suit,  the  note  was  presented  to  the  endorser,  who  being  informed 
that  the  maker  had  not  paid  the  note,  said  he  knew  M.  had  not,  and  that 
31.  was  not  to  pay  it ;  that  it  was  the  concern  of  the  defendant  alone, 
and  31.  had  nothing  to  do  with  it;  that  the  note  had  been  given  for  part 
of  the  purchase  money  of  a  certain  race  horse  called  Ratler,  and  that 
the  defendant  offered  to  take  up  the  said  note  if  the  plaintiff's  agent 
would  give  him  time  and  receive  other  notes  mentioned  in  payment.  This 
evidence  was  received  as  competent  to  support  the  action  against  the 
endorser,  without  any  further  proof  of  demand  upon  the  maker  or  no- 
tice to  the  acceptor,  and  a  verdict  was  found  and  judgment  given  there- 
upon for  the  plaintiff.  But  a  bill  of  exceptions  being  taken  to  the  opi- 
nion, the  supreme  court  of  the  United  States  reversed  the  judgment, 
and  remanded  the  cause  for  a  new  trial.      Washington,  J.  delivering  the 


Declarations  in  debt.  437 

opinion  of  the  court,  said  :  "The  declarations  of  the  defendant  amount 
to  an  unequivocal  admission  of  the  original  liability  of  the  defendant  to 
pay  the  note,  and  nothing  more.  They  do  not  necessarily  admit  the 
right  of  the  holder  to  resort  to  him  on  the  note,  and  that  he  had  received 
no  damage  from  the  want  of  notice,  unless  the  jury,  to  whom  the  con- 
clusion of  the  fact  from  the  evidence  ought  to  have  been  submitted,  were 
satisfied  that  the  defendant  was  also  apprised  of  the  laches  of  the  holder, 
in  not  making  a  regular  demand  of  payment  of  the  note,  by  which  he 
was  discharged  from  his  responsibility  to  pay  it.  The  knowledge  of 
this  fact  formed  an  indispensable  part  of  the  plaintiff's  case,  since,  with- 
out it,  it  cannot  fairly  be  inferred  that  the  defendant  intended  to  admit 
the  right  of  the  plaintiff  to  resort  to  him,  if,  in  point  of  fact,  he  had 
been  guilty  of  such  laches  as  would  discharge  him  in  point  of  law.  For 
any  thing  that  appeared  to  the  court  below  from  the  evidence  stated  in 
the  bill  of  exceptions,  the  admissions  of  the  defendant  may  have  been 
made  upon  the  presumption  that  the  holder  had  done  all  that  the  law  re- 
quired of  him  in  order  to  charge  the  endorser.  That  due  notice  was 
not  given  to  the  defendant,  he  could  not  fail  to  know,  but  that  a  regular 
demand  was  made  of  the  maker  of  the  note,  could  not  be  inferred,  hy 
the  court,  from  the  admissions  of  the  defendant." 

Mr.  justice  J/'Lean,  in  his  opinion  in  Raynolds  S^c.  v.  Douglass  S^c. 
12  Peters  505.  adverts  to  the  preceding  case  and  to  some  of  the  deci- 
sions of  the  english  courts,  but  the  more  recent  cases  do  not  appear  to 
have  been  noticed  by  him,  and  they  will  now  be  briefly  adverted  to. 

It  is  remarked  by  Mansfield,  C.  J.  in  Borradaile  v.  Lmce,  4  Taunt.  97. 
that  in  most  of  the  cases,  where  the  defendants  have  been  held  liable, 
they  have  either  made  an  express  promise  to  pay,  or  a  promise  when 
they  had  a  full  knowledge  at  the  time  that  they  were  discharged,  or 
where  there  was  a  real  debt,  binding  in  conscience,  due  from  them.  In- 
deed, in  another  part  of  his  opinion,  he  says,  he  does  not  find  any  case, 
in  which  an  endorser,  after  having  been  discharged  by  the  laches  of  the 
holder,  has  been  held  liable  upon  his  endorsement  except  where  an  ex- 
press promise  to  pay  has  been  proved. 

In  Hicks  v.  Beaufort,  4  Bingh.  N.  C.  229.  33  Eng.  Com.  Law  Rep. 
337.  Tindal,  C.  J.  says,  "  The  cases  go  to  this  point  only,  that  if  after 
the  dishonour  of  a  bill,  the  drawer  distinctly  promises  to  pay,  that  is  evi- 
dence from  which  it  may  be  inferred  he  has  received  notice  of  the  dis- 
honour ;  because  men  are  not  prone  to  make  admissions  against  them- 
selves ;  and  therefore  when  the  drawer  promises  to  pay,  it  is  to  be  pre- 
sumed he  does  so  because  he  knows  the  acceptor  has  refused.  Lundie 
v.  Robertson,  7  East  231.  goes  no  further  than  that.  There,  the  defendant 
said,  '  that  he  had  not  had  regular  notice,  but  as  the  debt  was  justly  due 
he  would  pay  it ;'  and  the  jury  having  presumed,  from  these  expressions, 
that  he  must  have  received  notice  of  the  dishonour,  the  court  refused  to 
interfere." 

The  bill  in  the  case  of  Hicks  v.  The  Duke  of  Beaufort,  was  payable 
in  December  1831.  At  the  trial  a  witness  stated  that  he  called  on  the 
defendant,  on  the  subject  of  the  bill,  in  May  1832,  when  the  defendant 
said,  it  was  hard  upon  him  as  he  had  only  drawn  the  bill  for  accommo- 
dation ;  that  if  the  acceptor  did  not  pay,  he  must,  but  he  desired  the  wit- 
ness would  exhaust  all  his  influence  with  the  acceptor  first.     The  witness 


"438  Declarations  in  debt. 

having  then  applied  to  the  acceptor  in  vain,  the  defendant  proposed  to 
raise  a  sum  of  money  by  an  annuity,  on  the  life  of  the  defendant  and 
the  acceptor,  but  the  treaty  was  broken  off  and  an  action  followed  against 
the  drawer.  The  judge  left  it  to  the  jury  to  determine  upon  the  evi- 
dence whether  or  not  the  defendant  had  received  notice  of  the  dishonour, 
and  the  jury  found  for  the  defendant.  It  was  contended  that  the  jury 
should  have  been  directed,  that  if  the  witness  were  believed,  the  notice 
was  to  be  regarded  as  proved  or  waived.  But  the  court  of  common 
pleas  did  not  consider  there  was  such  a  distinct  and  unconditional  pro- 
mise as  to  be  conclusive  upon  the  defendant  that  he  had  received  notice 
of  dishonour,  and  therefore  refused  to  grant  a  new  trial  on  the  ground 
of  misdirection. 

In  Norris  v.  Salomonson,  4  Scott  257.  36  Eng.  Com.  Law  Rep.  380. 
a  witness  deposed  that  in  reply  to  an  enquiry  made  by  him  of  the  drawer, 
as  to  whether  or  not  he  was  aware  of  the  bill  having  been  dishonoured, 
the  drawer  said,  "  Yes  :  I  have  had  a  very  civil  letter  on  the  subject  from 
mr.  G.  (an  intermediate  endorser,)  and  /  will  call  and  arrange  it."  The 
jury  returned  a  verdict  for  the  plaintiff,  and  a  motion  was  made  to  the 
court  of  common  pleas  for  a  new  trial.  Tindal,  C.  J.  said,  "  The  case 
seems  to  me  to  fall  within  those  where  a  regular  notice  has  been  waived, 
or  the  proof  of  it  at  the  trial  dispensed  with,  by  reason  of  the  drawer's 
own  conduct.  The  defendant  admitted  that  he  had  received  a  notice  of 
dishonour.  The  question  having  gone  to  the  jury,  I  think  we  ought  not 
to  disturb  their  verdict."     The  rest  of  the  court  concurred. 

17.  Under  the  statute  giving  debt  jointly  against  drawer  and  endorser 
of  a  foreign  bill,  protested  for  non-acceptance  and  non-payment. 
1  Rob.  Prac.  47. 

of  a  plea  that  they  render  to  the  plaintiffs  the  sum  of 

.£2201.  14.  6.  of  sterling  money  of  Great  Britain,*  with  inte- 
rest at  the  rate  of  six  per  centum  per  annum  on  £  2000.  parcel  of 
the  said  sum  from  the  8th  day  of  February  1837,  which,  to  the 
plaintiffs,  the  defendants  owe,  and  from   them  unjustly  detain. 

And  thereupon  the  said  plaintiffs  say  that  heretofore,  to  wit, 
on  &c.  at  the  cityof  jR.  in  Virginia,  the  said  W.  J.  M.  according 
to  the  custom  of  merchants  in  that  behalf,  made  his  certain  bill 
of  exchange  in  writing,  the  date  whereof  is  the  day  and  year 
last  aforesaid,  and  subscribed  thereto  his  name  and  style  of  &c., 
and  then  and  there  directed  the  said  bill  of  exchange  to  TV,  O. 
and  company,  by  the  style  and  addition  of  messrs.  W.  O.  ^  Co. 
Liverpool,  by  which  said  bill  of  exchange  the  said  W.  J.  M. 
then  and  there,  required  the  said  W.  O.  and  company,  sixty 
days  after  sight  of  that  his  first  of  exchange,  (second  and  third 
of  the  same  lenour  and  date  not  paid),  to  pay  to  the  order  of  the 
said  J.  H.  E.  two  thousand  pounds  sterling,  in  Londmi,  for 
$9600  current  money,  there,  to  wit,  at  R.  aforesaid,  received, 
and  place  the  same  to  account  of  the  said  W.  J.  M. ;  ant   the 


Declarations  in  debt.  439 

said  W.  J.  M.  then  and  there,  to  wit,  on  the  same  day  and  year 
last  aforesaid,  at  R.  aforesaid,  delivered  the  said  bill  of  ex- 
change to  the  said  J.  H.  E.  And  the  plaintiffs  aver  that  the  said 
places  called  and  named  in  the  said  bill  of  exchange,  Liverpool 
and  London  are  not  within  the  limits  of  the  United  States,  or  the 
territories  thereof,  or  the  district  of  Columbia,  but  are  in  foreign 
parts,  to  wit,  in  Great  Britain  aforesaid.  And  the  said  plain- 
tiffs further  aver  that,  after  the  making  of  the  said  bill  of  ex- 
change as  aforesaid,  and  before  the  same  had  been  presented  or 
shewn  to  the  said  W.  O.  and  company,  and  also  before  payment 
of  any  part  of  the  sum  of  money  therein  required  to  be  paid, 
to  wit,  on  the  same  day  and  year  last  aforesaid,  at  R,  aforesaid, 
the  said  J.  H.  E.  endorsed  the  said  bill,  and  to  that  endorse- 
ment, subscribed  his  name  and  style  of  J.  H.  E.  and  then  and 
there  delivered  the  said  bill,  so  endorsed,  to  the  plaintiffs,  and 
thereby,  then  and  there,  ordered  and  appointed  the  sum  of  ster- 
ling money  specified  in  the  said  bill  to  be  paid  to  the  said  plain- 
tiffs ;  of  which  said  endorsement  and  delivery  the  said  W.  J.  M. 
afterwards,  to  wit,  on  the  same  day  and  year  last  aforesaid,  at 
the  city  of  R.  aforesaid,  had  notice.  And  the  plaintiffs  further 
aver  that  the  said  bill  of  exchange,  being  still  wholly  unaccept- 
ed and  unpaid,  was  after  the  said  endorsement  thereof,  to  wit, 
on  &c.  at  Liverpool  aforesaid,  to  wit,  at  the  said  city  of  R.  duly 
presented  and  shewn,  with  the  said  endorsement  thereon,  to  the 
said  W.  O.  and  company,  for  their  acceptance  thereof,  according 
to  the  said  custom  of  merchants,  and  the  said  W.  O.  and  com- 
pany were,  then  and  there,  requested  to  accept  the  same,  but 
that  the  said  W.  O.  and  company,  then  and  there,  wholly  ne- 
glected and  refused  so  to  do,  although  the  second  and  third  bills 
of  exchange,  in  the  said  first  bill  mentioned,  were,  then  and 
there,  wholly  unaccepted  and  unpaid ;  and  thereupon,  after- 
wards, to  wit,  on  the  same  day  and  year  last  aforesaid,  at  Li- 
verpool aforesaid,  to  wit,  at  the  city  of  R.  aforesaid,  the  said  bill 
of  exchange  was  duly  protestedt  for  non-acceptance  thereof,  ac- 
cording to  the  said  custom  of  merchants,  the  notarial  charges  of 
which  said  protest  amount  to  17  shillings  and  6  pence  sterling 
money  aforesaid  ;  of  all  which  premises,  and  especially  of  the 
said  protest,  the  said  defendants  afterwards,  to  wit,  on  the  — — 
day  of  January  1837,  in  the  city  of  R.  aforesaid,  had  due  no- 
tice.|  And  the  said  plaintiffs  further  say  that  the  said  bill  of  ex- 
change was  afterwards,  when  the  same  became  payable,  ac- 
cording to  the  tenour  and  effect  thereof,  to  wit,  on  the  8th  day 
of  February  1837,  at  Liverpool  aforesaid,  to  wit,  in  the  city  of 
R.  aforesaid  (the  said  bill,  as  well  as  the  said  second  and  third§ 
bills  therein  mentioned,  then  and  there,  being  still  wholly  unac- 
cepted and  unpaid),  duly  presented  and  shewn  to  the  said  W. 


440  ^       Declarations  in  debt. 

O.  and  company,  for  paynient  thereof,  according  to  the  said 
custom  of  merchants,  and  the  said  W,  O.  and  company  were, 
then  and  there,  required  to  pay  the  said  sum  of  .£2000.  sterling, 
specified  in  the  said  bill,  according  to  the  tenour  and  effect  of  the 
same,  and  of  the  said  endorsement  thereof,  but  the  said  W.  O. 
and  company  did  not,  nor  did  or  would  the  said  defendants,  or 
either  of  them,  or  any  person  or  persons  on  behalf  of  the  said 
defendants,  or  either  of  them,  at  the  time  when  the  said  bill  was 
so  presented,  and  shewn  for  payment,  as  aforesaid,  or  at  any 
other  time  whatever,  pay  the  said  sum  of  ^2000.  sterling,  spe- 
cified in  the  said  bill,  or  any  part  of  the  said  sum  last  mention- 
ed, but,  then  and  there,  wholly  neglected  and  refused  so  to  do ; 
and  thereupon  the  said  bill  was  afterwards,  to  wit,  on  the  same 
day  and  year  last  aforesaid,  at  Liverpool  aforesaid,  to  wit,  at  the 
city  of  R.  aforesaid,  duly  protested,  for  non-payment  thereof, 
according  to  the  said  custom  of  merchants,  the  costs  of  which 
last  mentioned  protest  amount  to  a  further  sum  of  17  shillings 
and  6  pence,  sterling  money  aforesaid  :  of  all  which  last  men- 
tioned premises,  and  especially  of  the  said  last  mentioned  pro- 
test, the  said  defendants  afterwards,  to  wit,  on  the day 

of  April  1837,  at  the  said  city  of  R.  had  due  notice.  By  means 
of  all  which  premises,  and  by  force  of  the  act  of  assembly  in 
such  case  made  and  provided,  the  said  defendants  became  liable 
to  pay  to  the  plaintiffs,  and  action  accrued  to  the  plaintiffs  to 
demand  and  have  of  and  from  the  said  defendants,  the  princi- 
pal sum  of  sterling  money  specified  in,  and  required  to  be  paid 
by,  the  said  first  bill  of  exchange,  and  the  costs  of  the  said  se- 
veral protests,  and  damages  at  the  rate  often  per  centum\\  on  the 
said  principal  sum  (which  said  principal  sum,  charges  of  pro- 
test and  damages,  together  amount  to,  and  make  up,  the  sum  of 
£2201.  14.  6.  sterling  money  first  herein  mentioned),  and  also 
interest  at  the  rate  of  six  per  centum  per  annum  on  <£2000  ster- 
ling money  aforesaid  from  the  date  of  the  said  protest  for  non- 
payment, to  wit,  from  the  Sth  day  of  February  1837  till  pay- 
ment, as  herein  before  mentioned.  Nevertheless  the  said  defen- 
dants, although  often  requested,  have  not,  nor  has  either  of  them, 
as  yet,  paid  to  the  plaintiffs,  the  said  sum  of  ^2201.  14.  6. 
sterling  money  as  aforesaid,  and  interest  as  aforesaid,  or  any 
part  thereof,  but  to  pay  to  the  plaintiffs,  the  same,  or  any  part 
thereof,  they  the  said  defendants  have,  and  each  of  them  hath, 
hitherto  wholly  refused,  and  they  do,  and  each  of  them  doth, 
still  refuse,  to  the  damage  of  the  said  plaintiffs  100  pounds  ster- 
ling moneyTf  of  Great  Britain;  and  therefore  they  bring  suit  &c. 

*  The  value  in  current  money  is  sometimes  laid,  through  abundant 
caution,  under  an  idea,  perhaps,  that  since  our  separation  from  Great 


Declarations  in  debt.  441 

Britain,  sterling  money  is  to  be  considered  like  other  foreign  money, 
and  sued  for  as  such.  But  as  the  laws  made  before  the  revolution  res- 
pecting sterling  money  debts,  remain  in  force,  they  may  still  be  sued  for 
and  recovered  without  laying  the  value  in  current  money  ;  the  courts 
having  the  same  power  to  settle  the  rate  of  exchange  which  they  for- 
merly had.  Although  however  there  is  no  necessity  for  laying  the  value 
of  the  sterling  money,  yet,  if  it  be  laid,  it  is  merely  surplusage,  and  will 
not  vitiate  the  declaration.  Skipwith  v.  Baird,  2  Wash.  165.  Broicn 
V.  Barry,  3  Dall.  368. 

tin  Salomons  v.  Stavely,  3  Doug.  300.  26  Eng.  Com.  Law  Rep.  117. 
the  action  was  against  the  endorser  of  a  foreign  bill  of  exchange,  and 
the  declaration  stated  that  the  drawee  "  had  refused  to  accept  or  pay  the 
same,  of  all  which  premises  the  said  defendant  afterwards,  and  with  all 
convenient  speed,  to  wit,  on  &c.  had  notice."  The  defendant  demur- 
red generally,  but  it  being  intimated  from  the  bench  that  the  not  alleging 
a  protest  was  form  only,  and  could  not  be  taken  advantage  of  on  general 
demurrer,  the  demurrer  was  withdrawn. 

Unless  however  the  protest  be  set  forth  in  the  declaration,  damages 
cannot  be  recovered  in  Virginia.  See  opinion  of  Tucker,  P.  in  Nelson 
V.  Fotterall,  7  Leigh  220.  and  opinion  of  BrocJcenhrough,  J.  in  *S^.  C.  204. 

I  In  Slacum  v.  Pomeroy,  6  Cranch  221.  it  was  argued  that  the  act  of 
assembly  which  gives  the  action  of  debt,  not  requiring  notice  to  be  laid 
in  the  declaration,  that  requisite  which  is  only  essential  in  an  action 
founded  on  the  custom  of  merchants,  is  totally  dispensed  with.  But  the 
supreme  court  was  not  of  that  opinion.  The  court  say,  "  That  in  giving 
the  action  of  debt  to  the  holder  of  a  bill  of  exchange,  the  legislature 
has  not  altered  the  character  of  the  paper  in  other  respects.  It  is  still 
a  pure  commercial  transaction,  governed  by  commercial  law.  Notice 
of  the  protest  is  still  necessary,  and  the  omission  to  aver  it  in  the  decla- 
ration is  still  fatal." 

§  In  Downes  S^c.  v.  Church,  13  Peters  205.  the  plaintiffs  declared  in 
assumpsit  upon  the  second  of  the  set  of  exchange,  which  second  of  the 
set  was  protested  for  non-acceptance,  and  the  same,  with  the  protest  at- 
tached thereto,  was  read  against  the  endorser  at  the  trial.  Whereupon 
a  question  arose,  whether  the  plaintiffs  could  recover  upon  the  said  se- 
cond of  exchange,  without  producing  the  first  of  the  same  set,  or  ac- 
counting for  its  non-production.  The  supreme  court  decided  this  ques- 
tion in  the  affirmative. 

II  See  Sess.  Acts  1828-9,  p.  27.  ch.  24.  Sup.  to  Rev.  Code,  p.  259. 
Slacum  V.  Pomeroy,  6  Cranch  221. 

^  In  Scott's  ex'ors  v.  Call,  1  Wash.  115.  the  action  was  for  sterling 
money,  and  it  was  considered  improper  to  lay  the  damages  in  current 
money.  This  explanation  of  the  decision  was  made  in  Skipwith  v. 
Baird,  2  W^sh.  165. 

18.  Against  drawer  and  endorser  of  a  note  upon  the  footing  of  a 
foreign  hill  except  as  to  damages.     1  Rob.  Prac.  47. 

that  they  render  to  the  said  plaintiff  the  sum  of  $  500, 


with  interest  thereon  at  the  rate  of  six  per  centum  per  annum  frona 
56 


442  Declarations  in  debt. 

the  eighth  day  of  June  1833  till  payment,  and  $2.95  cents,  the 
charges  for  the  protest  hereinafter  mentioned,  which  to  the  said 
plaintiff  they  owe,  and  fro'm  him  unjustly  detain.  And  there- 
upon the  said  plaintiff  saith  that  heretofore,  to  wit,  on  &c.  at  R. 
to  wit,  in  the  said  county  of  H.  the  said  J.  M.  B.  made  his  cer- 
tain note  in  writing,  bearing  date  the  day  and  year  last  afore- 
said, and  subscribed  his  name  thereto,  by  which  said  note  he, 
then  and  there,  promised  to  pay,  sixty  days  after  the  date  thereof, 
to  the  said  A.  R.  or  order,  $  500  without  offset,  negotiable  and 
payable  at  the  bank  of  Virginia,  for  value  received  ;  and  the 
said  A.  R.  after  the  making  of  the  said  note,  and  before  the 
same  became  payable,  to  wit,  on  the  said  sixth  day  of  April 
1833,  at  &c.  endorsed  the  said  note,  and  subscribed  his  name 
to  such  endorsement,  by  which  said  endorsement  the  said  A. 
R.  then  and  there,  ordered  and  appointed  the  said  sum  of  mo- 
ney, in  the  said  note  specified,  to  be  paid  to  the  plaintiff;  of 
which  said  endorsement,  the  said  /.  M.  B.  afterwards,  to  wit, 
on  the  said  sixth  day  of  April  1833,  at  &c.  had  notice.  And 
the  said  plaintiff  avers  that  afterwards,  when  the  said  note  be- 
came due  and  payable,  according  to  the  tenour  and  effect  thereof, 
to  wit,  on  the  said  eighth  day  of  June  1833,  at  the  said  bank  of 
Virginia,  to  wit,  at  R.  aforesaid,  in  the  said  county  of  H.  the 
said  note  was  duly  presented  at  the  said  bank  of  Virginia,  for 
payment  thereof,  and  payment  of  the  said  sum  of  money  therein 
specified  was,  then  and  there,  duly  required  according  to  the  te- 
nour and  effect  of  the  said  note,  but  neither  the  said  J.  M.  B.  nor 
the  said  bank  of  Virginia,  nor  any  person  or  persons  whatsoever, 
did,  when  the  said  note  was  so  presented  for  payment  thereof, 
as  aforesaid,  or  at  any  time,  before  or  afterwards,  pay  the  said 
sum  of  money  therein  specified,  or  any  part  thereof,  but  wholly 
neglected  and  failed  so  to  do  ;  and  thereupon  the  said  note  was 
duly  protested  for  non-payment,  to  wit,  on  the  said  eighth  day 
of  June  1833,  at  R.  aforesaid,  in  the  said  county  of  H.  and  the 
charges  of  the  said  protest  amount  to  $  2.95  cents  :  of  all  which 
premises,  and  especially  of  the  said  protest,  the  said  A.  R.  af- 
terwards, to  wit,  on  the  said  eighth  day  of  June  1833,  at  R. 
aforesaid,  in  the  said  county  of  H.  had  due  notice.  By  means 
of  which  said  premises,  and  by  force  of  the  act  of  assembly,  in 
such  case  made  and  provided,  the  said  J.  M.  B.  and  A.  R.  be- 
came liable  to  pay  to  the  said  plaintiff,  and  action  accrued  to 
the  said  plaintiff  to  demand  and  have  of  and  from  the  said  J. 
M.  B.  and  A.  R.  the  said  principal,  interest  and  charges  of  pro- 
test above  demanded.  Nevertheless  the  said  J.  M.  B.  and  A. 
R.,  although  often  requested  so  to  do,  have  not,  nor  hath  either 
of  them,  as  yet,  paid  to  the^aid  plaintiff  the  principal,  interest, 
and  charges  of  protest  aj^oj^  deraandecC  Or  any  part  thereof, 


Declarations  in  debt.  443 

but  to  pay  the  same,  they  have,  and  each  of  them  hath,  hitherto 
wholly  neglected  and  refused,  and  they  do,  and  each  of  them 
doth,  still  refuse,  to  the  damage  &c.  (as  in  No.  1.) 

19.  Against  the  drawer  of  a  hill  of  exchange,  indejjendently  of  the 

statute. 

In  Hodges  and  Stetcard,  Skinn.  346.  it  is  said  that  indebitatus  assump- 
sit lies  against  the  drawer  of  a  bill  of  exchange  for  value  received. 
This  case  was  relied  on  in  Stratton  v.  Hill,  3  Price  253.  reported  also, 
though  more  briefly,  in  2  Chitty  126.  18  Eng.  Com.  Law  Rep.  274. 
The  declaration  was  in  debt,  and  two  of  the  counts  were  on  bills  of  ex- 
change, drawn  by  the  defendant,  payable  to  his  own  order  and  endorsed 
by  him  to  the  plaintiffs.  To  the  objection  taken  that  debt  would  not  lie 
against  the  endorser,  the  plaintiff's  counsel  replied  that  debt  might  be 
maintained  against  the  drawer  of  the  bill  who  owed  the  debt,  and  for 
whose  benefit  the  apparent  consideration  enured,  and  his  character  of 
principal  debtor  was  not  altered,  nor  his  liability  as  drawer  discharged. 
Between  him  and  every  person  becoming  possessed  of  the  bill  there  was 
a  continuing  privity.  The  counsel  for  the  defendant  then  took  the 
ground  that  the  defendant  was  not  liable  to  the  action  of  debt  against 
him  as  drawer,  after  he  had  acquired  the  new  character  of  endorser. 
But  the  court  said  the  question  appeared  to  be  quite  clear.  The  subse- 
quent endorsement  by  the  drawer  of  the  bill  did  not  render  him  the  less 
amenable  on  that  account  to  any  liability  to  which  he  was  originally 
subject. 

20.  Against  the  ax:ceptor  of  a  hill  of  exchange. 

In  Smith  v.  Segar,  3  H.  &  M.  394.  decided  in  1809,  and  Wilson  v. 
Crowdhill,  2  Munf.  302.  decided  in  1811,  the  court  of  appeals /teW  that 
an  action  of  debt  would  not  lie  against  the  acceptor  of  a  bill  of  ex- 
change, even  for  the  payee.  The  question  afterwards  came  before  the 
supreme  court  of  the  United  States,  in  the  case  of  Raborg  S^c.  v.  Pey- 
ton, 2  Wheat.  385.  decided  in  1817.  Mr.  justice  Story,  who  delivered 
the  opinion  of  the  court,  states  the  general  principle  that  debt  lies  upon 
every  express  contract  to  pay  a  sum  certain,  and  that  it  lies  though  there 
be  only  an  implied  contract,  and  after  remarking  that  it  has  been  su|>- 
posed  this  principle  does  not  apply  to  an  action  on  a  bill  of  exchange 
where  the  suit  is  brought  by  the  payee  against  the  acceptor,  and  ad- 
verting to  the  decision  to  that  effect  in  Hardres  485.  he  examines  the 
reasons  assigned  for  that  decision,  contrasts  the  doctrine  with  others  es- 
tablished in  modern  times,  and  comes  to  the  conclusion  that  debt  will 
lie  not  only  for  the  payee,  but  also  for  the  endorsee,  of  the  bill  against 
the  acceptor,  when  it  is  expressed  to  be  for  value  received.  This  was 
certified  as  the  opinion  of  the  supreme  court,  to  the  court  below. 

More  recently  the  subject  has  been  considered  in  the  court  of  king's 
bench.  Pricldy  S^c.  v.  Henhrey,  1  Barn.  &  Cress.  674.  8  Eng.  Com. 
Law  Rep.  179.  decided  in  1823,  was  debt  against  the  acceptor  by  the 
drawers  of  a  bill   payablfe  to  themselves,  or  their  order,  for  value  re- 


444  Declarations  in  debt. 

ceived  in  goods.  This  acceptance  was  considered  an  admission  by  the 
acceptor  that  he  had  previously  received  value  in  goods,  and  upon  such 
an  acceptance,  Bayley,  J.  and  Holroyd,  J.  (the  only  judges  before  whom 
the  case  was  argued)  were  of  opinion  that  the  action  of  debt  brought  by 
the  drawers,  might  be  maintained.  Here  there  was  an  immediate  pri- 
vity between  the  plaintiffs  and  defendant  independently  of  the  bill.  The 
defendant  was  immediate  debtor  to  the  plaintiffs,  and  he  contracted  by 
his  acceptance  to  pay  that  debt. 

Cloves  v.  Williams,  3  Bingh.  N.  C.  868.  32  Eng.  Com.  Law  Rep. 
360.  decided  in  1837,  was  debt  against  the  acceptor  hy  an  endorsee,  and 
the  court  of  common  pleas  held  the  action  would  not  lie. 

21.  By  the  payee  against  the  a.cceptor  of  an  order. 

A  general  acceptance  of  an  order  binds  the  acceptor  to  the  payee,  by 
whom  the  same  was  taken  bona  fide  and  for  a  valuable  consideration 
paid  by  him,  notwithstanding  the  consideration  which  induced  the  accep- 
tance afterwards  fails ;  such  failure  being  without  any  fault  on  the  part 
of  the  payee.     Corbin's  adm'r  v.  Southgate,  3  H.  &  M.  319. 

Under  the  statute  of  Virginia  cited  in  1  Rob.  Prac.  46.  an  action  of 
debt  may  be  maintained  upon  a  note  or  writing  by  which  the  person  sign- 
ing the  same  shall  promise  or  oblige  himself  to  pay  a  sum  of  money  or 
quantity  of  tobacco  to  another.  The  effect  of  this  statute  does  not  seem 
to  have  been  considered  by  the  court  of  appeals  in  the  cases  of  Smith  v. 
Segar,  3  H.  «St  M.  394.  and  Wilson  v.  Crowdhill,  2  Munf.  302.  and  the 
view  taken  in  Raborg  c.  v.  Peyton,  2  Wheat.  385.  made  it  unnecessary 
for  the  supreme  court  to  consider  whether  the  statute  applied  to  the  ac- 
ceptor of  a  bill  or  not.  More  recently  in  the  case  of  Hollingsworth  v. 
Milton,  8  Leigh  50.  the  statute  was  particularly  noticed  and  the  opinion 
expressed  that  under  it,  an  action  of  debt  would  lie  against  the  acceptor 
of  an  order.  For  by  his  acceptance  he  obliges  himself  to  pay  the  amount 
of  the  draft  to  the  payee.  His  obligation  is  absolute  and  unconditional. 
And  he  comes  within  the  letter  as  well  as  the  spirit  of  the  statute. 

The  following  precedent  is  taken  from  the  declaration  in  Hollings- 
worth V.  Dunbar : 

that  he  render  to  the  said  plaintiff  the  sunn  of  $  172.50 

cts.  with  lawful  interest  thereon  from  the  25th  day  of  February 
1825,  which  he  owes  to  the  said  plaintiff  and  unjustly  detains 
from  him.  And  thereupon  the  said  plaintiff  saith  that  hereto- 
fore, to  wit,  on  &c.  at  &c.  a  certain  D.  H.  A.  by  his  note  in 
writing,  signed  with'the  proper  name  of  him  the  said  D.  H.  A., 
by  his  own  hand,  did  order  the  said  J.  P.  H.  to  pay  to  the  said 
E.  M.,  or  order,  the  said  sum  of  $  172.50  cents  with  interest 
from  the  25th  day  of  February,  then  last  past,  stating  in  the  said 
note  in  writing  that  the  said  sum  with  interest  as  aforesaid  was 
the  balance  due  from  the  said  H.  to  the  said  A.  for  wheat ;  and 
afterwards,  to  wit,  on  &c.  at  &c.  the  said  order  was  presented 
to  the  said  J.  F.  H.  who,  then  and  there,  by  endorsement  there- 


Declarations  in  debt.  445 

on,  signed  with  the  proper  name  of  him  the  said  H.  by  his  own 
hand,  accepted  the  same,  and  thereby  obliged  himself  to  pay  to 
the  said  plaintiff  the  said  sum  of  $  172.50  cents  with  interest 
thereon  as  above  demanded.  Nevertheless  the  said  J.  P.  H., 
although  often  requested  so  to  do,  hath  not  paid  to  the  said  plain- 
tiff the  said  sum  of  $  172.50  cts.  with  interest  thereon  as  above 
demanded,  or  any  part  thereof,  but  to  pay  the  same,  or  any  part 
thereof,  hath  hitherto  wholly  neglected  and  refused,  and  still 
doth  neglect  and  refuse,  to  the  damage  &c.  (as  in  No.  1.) 

22.  For  rent.     1  Rob.  Prac.  70.  71.  72. 

It  was  decided  in  Newton  v.  Wilson,  3  H.  &  M.  470.  and  Mickie  v. 
Wood's  ex' or,  5  Rand.  571.  in  conformity  with  the  settled  doctrine  of 
the  english  courts,  that  a  compensation  stipulated  to  be  paid  for  the  use 
of  land  and  personal  property  together,  is  not  a  sum  in  gross,  but  rent 
issuing  out  of  the  land. 

The  following  precedent  is  taken  from  the  declaration  in  Newton  v. 
Wilson : 

As  in  No.  1.  to — heretofore,  to  wit,  on  &c.  at  &c.  the  defen- 
dant entered  into  an  agreement  with  the  plaintiff  (the  date 
whereof  is  the  same  day  and  year  aforesaid,)  by  which  he  un- 
dertook to  pay  the  plaintiff,  annually,  four  hundred  dollars,  for 
the  use  of  his  mills  and  two  tracts  of  land  adjoining  the  same, 
containing  two  hundred  acres  more  or  less,  lying  in  the  said 
county  at  and  near  the  great  falls  of  Willis's  river,  for  the  term 
often  years,  commencing  on  the  25th  day  of  January  1802,  to- 
gether with  the  miller  and  stock  of  hogs.  And  the  plaintiff 
avers  that  at  the  county  aforesaid,  on  the  day  and  year  last  above 
mentioned,  he,  being  seized  in  fee  of  the  said  mills  and  two  hun- 
dred acres  of  land,  and  possessed  absolutely  of  the  said  miller 
and  stock  of  hogs  at  the  said  mills,  delivered  the  possession 
thereof  to  the  defendant,  all  of  which  he  accepted,  agreeably  to 
the  terms  and  conditions  expressed  in  the  agreement  aforesaid, 
in  the  nature  of  a  lease  for  years,  and  was  thereof  possessed  for 
and  during  one  whole  year,  commencing  on  the  said  25th  Ja- 
nuary 1802,  and  ending  on  the  25th  day  of  January  1803.  By 
means  whereof  he  became  indebted  to  the  plaintiff  in  the  sum  of 
four  hundred  dollars  as  aforesaid,  for  the  rent  of  that  year,  lobe 
paid  when  thereto  required.  Yet  the  defendant,  although  often 
required  to  pay  the  same,  hath  refused  and  still  doth  refuse  so 
to  do,  to  the  damage  &c.  (as  in  No.  1.) 


446  Declarations  in  debt. 

23.   Counts  to  admit  evidence  to  repel  defence  under  statute  of 

limitations. 

In  an  action  of  debt  on  a  promissory  note,  or  other  simple  contract, 
if  the  defendant  plead  that  the  action  was  not  commenced  within  five 
years  next  after  the  cause  thereof,  and  the  plaintiff  reply  generally,  that 
the  action  was  commenced  within  the  said  five  years,  and  issue  is  there- 
upon joined,  at  the  trial  of  such  issue,  the  matter  will  be  within  a  nar- 
row compass.  It  will  only  be  necessary  to  see  at  what  time  the  cause 
of  action  accrued,  and  at  what  time  the  suit  was  commenced.  An  in- 
spection of  the  writ  will  ascertain  the  last.  And  cases  have  occurred 
in  which  it  was  only  necessary  to  read  the  declaration  to  ascertain  the 
first. 

Thus,  in  Butcher  v.  Hixton,  4  Leigh  519.  the  action  was  on  a  pro- 
missory note,  and  the  declaration  contained  a  single  count,  which  set 
forth  the  note  and  shewed  that  it  was  payable  the  15th  of  September 
1820.  It  thus  appeared  on  the  face  of  the  declaration  that  the  cause  of 
action  accrued  on  the  15th  of  September  1820.  The  issue  being  whe- 
ther the  cause  of  action  accrued  within  five  years  next  after  the  cause 
thereof,  at  the  trial  of  that  issue,  it  appeared  that  the  action  was  not 
commenced  till  May  1826.  On  the  note  there  was  a  credit  for  $  4  00, 
paid  the  22d  of  August  1822,  and  evidence  was  given  that  the  princi- 
pal debtor  within  the  five  years  next  before  the  action  brought,  acknow- 
ledged that  the  debt  was  unpaid  and  justly  due.  The  defendant,  who 
was  surety,  demurred  to  the  evidence.  Tucker,  P.  and  Carr,  J.  were 
of  opinion,  that  even  if  the  surety  himself  had  within  the  five  years  ac- 
knowledged the  debt  and  promised  to  pay  it,  the  issue  must  still  have 
been  found  for  the  defendant. 

What  then  is  the  proper  course  for  a  creditor  who  has  not  commenced 
his  action  within  five  years  next  after  the  cause  thereof?  If  a  good  and 
sufficient  promise  has  been  made  to  him  within  five  years,  in  what  way 
can  he  have  the  benefit  of  that  promise  1  The  answer  is,  by  bringing 
assumpsit  instead  of  debt,  or  if  debt  be  brought,  by  adding  to  the  count 
upon  the  original  cause  of  action,  some  other  count  or  counts  under 
which  the  new  promise  can  be  given  in  evidence.  The  case  o^  Butcher 
V.  Hixton,  says  Tucker,  P.  "  is  not  conceived  to  go  further  than  to  es- 
tablish the  necessity  of  bringing  assurrtpsit,  or  adding  a  count  on  inde- 
bitatus assumpsit  where  reliance  is  to  be  placed  upon  an  acknowledg- 
ment, or  promise  to  avoid  the  bar  of  the  statute  of  limitations."  Again 
he  says,  "no  serious  inconvenience  can  be  sustained,  even  in  causes 
now  pending,  since  in  every  case,  upon  motion,  a  second  count  in  debt 
upon  the  new  promise  or  acknowledgment,  or  a  count  in  indtbitatus  as- 
sumpsit, may  be  added  for  the  amendment  of  the  declaration."  See  his 
opinion  in  The  Farmers  Bank  v.  Clarke,  4  Leigh  609,  10. 

When  judge  Tucker  speaks  of  adding  a  count  in  indebitatus  assump- 
sit, he  means  the  indebitatus  count  in  debt.  It  will  be  advisable  also  to 
have  a  count  in  debt  upon  an  insimul  computassent. 


Declarations  in  debt.  447 

24.  General  couftts. 

Forms  in  debt  of  the  indebitatus  count,  of  the  counts  for  money  lent, 
money  paid,  and  money  had  and  received,  and  of  the  count  upon  an  in- 
simul  computassent,  are  given  in  Chitty's  pleadings,  vol.  3.  of  5  Am. 
from  4  Lond.  edi.  p.  385,  6,  7. 

25.  On  a  judgment. 

In  Newcomb  v.  Drummond,  4  Leigh  57.  debt  was  maintained  on  a  judg- 
ment obtained  in  a  court,  the  office  of  which  had  been  consumed  by  fire, 
and  the  record  of  this  judgment,  among  other  papers,  wholly  destroyed. 
The  action  was  maintained,  though  an  appeal  had  been  taken  from  the 
judgment  and  an  appeal  bond  executed,  which  appeal  had  not  been  fur- 
ther prosecuted,  because  of  the  fire  which  occurred  soon  afterwards. 

In  Dykes  Sf  Co.  v.  Woodkouse's  adm'r,  3  Rand.  287.  it  was  decided 
that  an  administrator  de  bonis  non  might  maintain  debt  upon  a  judgment 
obtained  by  an  executor. 

In  an  action  upon  a  judgment  for  a  penalty,  to  be  discharged  by  a 
smaller  sum  with  interest  and  costs,  the  plaintiff  should  declare  for  the 
penal  sum,  and  not  for  such  smaller  sum  and  interest.  Ragsdale  v.  Batte, 
2  Wash.  201.   Codij's  adm'r  v.  Price,  4  Munf  307. 

Formerly  in  an  action  on  a  judgment,  the  practice  was  to  set  out  the 
whole  record  in  the  declaration,  but  that  is  not  now  necessary.  Coalter, 
J.  in  S.  C.  302. 

It  was  held  in  Dykes  4'  Co.  v.  Woodkouse's  adm'r,  that  a  declaration 
stating  that  A.  B.  executor  of  C.  D.  recovered  the  judgment,  sufficiently 
averred  that  the  judgment  was  obtained  by  the  executor,  in  that  charac- 
ter. It  was  not  deemed  indispensable  that  the  word  "as"  should  be  in- 
serted before  the  word  "  executor,"  nor  that  there  should  be  a  distinct 
averment  that  the  judgment  was  for  a  debt  due  to  the  testator.  Upon 
the  declajration  as  it  stood,  the  judgment  was  regarded  as  having  been 
obtained  by  the  executor  as  such,  and  for  a  debt  or  demand  of  his  tes- 
tator. 

26.  On  a  Judgment  against  an  executor^  suggesting  a  devastavit, 
1  Rob.  Prac.  53  to  57.  and  215,  16. 

As  in  No.  1.*  to — heretofore,  to  wit,  at  a  court  held  for  the 
county  of  P.  before  the  justices  of  the  said  county,  at  the  court- 
house, on  the day  of in  the  year ,  by  the 

judgment  of  that  court,  the  said  plaintiff  recovered  against  C. 
D.  as  executor  &c.  (recite  the  judgment) ;  whereof  the  said  C. 
D.  as  executor  as  aforesaid,  is  convicted,  as  by  the  record  there- 
of, in  the   same  court,  manifestly  appears.     And  the  plaintiff 

further  saith  that  afterwards,  to  wit,  on  the day  of 

in  the  year ,  a  writ  o^  Jieri  facias,  bearing  date  the  same 

day  and  year  last  aforesaid,  was  sued  out  of  the  court  of  the 
said  county  of  P.  upon  the  said  judgment,  directed  to  the  sheriff 


448  Declarations  in  debt. 

of  the  said  county*  whereby  the  said  sheriff  was  commanded 
that  of  the  goods  and  chattels  of  the  said  E.  F.  in  the  hands  of 
the  said  C.  D.  executor  as  aforesaid,  to  be  administered,  he 

should  cause  to  be  made  the  said ,  upon  which  writ  of 

fieri  facias,  the  said  sheriff  by  his  deputy,  afterwards  made  a 
return  to  the  following  effect  (copy  the  return),  as  by  the  said 
writ  and  the  return  thereon  made,  remaining  in  the  office  of  the 
said  court  of  P.  county,  appears;  and  the  said  judgment  still 
remains  in  full  force  and  effect,  not  in  the  least  reversed,  an- 
nulled, set  aside  or  satisfied.  And  the  plaintiff  avers,  that  at 
the  time  of  the  said  judgment,  to  vi^it,  on  &c.  at  &c.  divers 
goods  and  chattels,  which  were  of  the  said  jE.  F.  at  the  time  of 

his  death,  of  great  value,  to  wit  of  the  value  of  the  said , 

in  form  aforesaid  recovered,  had  come  to  the  hands  of  the  said 
C.  D.  as  executor  as  aforesaid,  to  be  administered  ;  and  which 
said  goods  and  chattels,  the  said  C.  D.  executor  as  aforesaid, 
afterwards,  to  wit,  on  the  same  day  and  year  last  aforesaid,  at 
&c.  aforesaid  eloigned,  wasted,  and  converted  and  disposed  of  to 
his  own  use.  Whereby  an  action  hath  accrued  to  the  said  plain- 
tiff to  demand  and  have  of  and  from  the  said  CP.  the  said  sum 

of above  demanded.  Nevertheless  the  said  C.  D.  although 

often  requested  so  to  do,  hath  not  paid  to  the  plaintiff  the  said 
sum  of ,  or  any  part  thereof,  but  &c.  (as  in  No.  1.) 

*  If  the  plaintiff  declare  not  in  the  debet  and  detinet,  but  in  the  deti- 
net  only,  he  is  not  entitled  to  judgment  against  the  defendant  de  bonis 
propriis  but  de  bonis  testatoris  only.  Spotswood  v.  Price,  3  H.  &  M. 
123. 

27.   Of  the  official  bond,  of  any  executor,  administrator,  guardian^ 
committee,  curator  or  other  officer.     1  Rob.  Prac.  55.  59  and  60. 

The  act  of  Feb.  13.  1838.  declares  that  every  action  upon  the  official 
bond  of  any  executor,  administrator,  guardian,  committee,  curator  or 
other  officer,  whether  such  bond  shall  have  been  executed  before  or 
after  the  passage  of  this  act,  may  be  brought,  maintained  and  prosecuted 
to  judgment  and  final  execution,  in  the  names  of  the  judges,  justices  or 
other  person  to  whom  such  bond  is  made  payable,  for  the  benefit  of  the 
person  injured  by  the  breach  of  any  condition  of  the  said  bond,  whether 
such  judges,  justices  or  other  person,  to  whom  it  is  made  payable,  be 
alive  or  not;  and  such  suit  shall  not  be  abated,  nor  shall  execution  of 
the  judgment  thereon  be  hindered  or  delayed  by  any  allegation  of  the 
death  of  the  said  judges,  justices  or  other  person,  or  any  of  them.  Sess. 
Acts  1837-8,  p.  72.  ch.  93.  §  1. 

It  further  enacts  that  no  exception  shall  be  allowed  to  any  such  bond 
on  the  ground  that  any  justice  or  justices,  to  whom  the  same  may  be 
made  payable,  was  not  sitting  in  the  court  at  the  time  when  the  bond 
was  executed,  or  that  any  other  justice  was  sitting.     But  it  provides 


Declarations  in  debt.  449 

that  nothing  therein  contained  shall  be  so  construed  as  to  prevent  suits 
being  brought,  on  the  bonds  aforesaid,  in  the  manner  previously  autho- 
rized by  law,  §  2. 

28.    On  the  bond  of  an  executor  or  administrator.     1  Rob.  Prac. 
b5,  6,  7.  and  215,  16. 

Three  things  must  be  shewn  in  order  to  establish  a  breach  of  the  con- 
dition of  the  bond. 

1.  The  plaintiff  must  have  an  ascertained  demand  against  the  estate. 
If  he  is  a  legatee  under  the  testator's  will,  and,  as  such,  alleges  that  he 
has  been  injured  by  the  executor,  no  action  can  be  maintained  upon  the 
bond  of  the  executor  until  the  legatee  has  established  his  claim,  by  a 
decree  of  a  court  of  equity.  Tucker,  president,  in  Burnett  S^c.  v.  Har- 
well S^c.  3  Leigh  94. 

2.  Assets  in  the  hands  of  the  executor.  The  necessity  of  proof  of 
assets  is  obvious  from  the  consideration  that  if  no  assets  were  received 
there  could  be  no  breach  by  devastavit ;  and  the  necessity  of  proving 
the  amount  of  assets  is  also  clear  because  it  has  been  repeatedly  decided 
that  the  jury  must  either  find  sufficient  assets  or  the  amount  of  assets. 
Tucker,  president,  in  S.  C.  96. 

3.  The  return  of  the  sheriff  that  no  such  assets  can  be  had  to  satisfy 
the  execution.  A  judgment  against  an  executor  or  administrator,  with 
a  return  on  the  execution  "  that  he  has  removed  out  of  the  state,"  is  not 
sufficient  to  authorize  an  action  on  the  executor's  bond.  Turner  S^c. 
V.  Chinn's  ex'ors,  1  H.  &  M.  53.  A  return  of  "  no  unadrainistered  or  un- 
incumbered effects,  whereof  I  can  make  the  within  debt,  damages  and 
costs"  is  sufficient.     Allen  ^c.  v.  Cunningham  S^c.  3  Leigh  395. 

If  the  judgment  against  the  executor  be  obtained  by  an  administrator, 
and,  upon  the  death  of  such  administrator,  administration,  de  bonis  non, 
is  granted,  an  action  may  be  maintained  upon  the  executor's  bond  at  the 
relation  of  the  administrator  de  bonis  non.  Allen  «^c.  v.  Cunningham  S^c. 
3  Leigh  395. 

But  where  a  creditor  has  obtained  a  judgment,  or  a  legatee  obtained 
a  decree,  against  an  executor,  if  there  be  an  assignment  of  the  judgment 
or  decree,  no  action  can  be  maintained  on  the  executor's  bond  at  the 
relation  of  such  assignee ;  for  the  previous  judgment  or  decree  does  not 
ascertain  that  he  is  a  party  injured.  The  action  must  be  at  the  relation 
of  that  creditor,  or  that  legatee,  who  has  obtained  the  judgment  or  de- 
cree. And  an  endorsement  may  be  made  upon  the  writ  or  declaration 
shewing  that  it  is  for  the  benefit  of  that  person  who  has  the  assignment. 
Burnett  and  others  v.  Harioell  S^c.  3  Leigh  89. 

The  following  precedent  is  taken  from  the  declaration  in  Allen  S^c. 
V.  Cunningham  S^c.  3  Leigh  395. : 

S.  A.,  B.  F.,  J.  J.  and  P.  P.  justices  of  the  court  for  the 
county  of  B.*  who  sue  for  the  benefit  of  W.  A.  administrator  of 
the  goods,  chattels  and  credits  which  were  of  jR.  H.  deceased, 
at  the  tinie  of  his  death,  and  which  were  unadministered  by  M. 
H.  in  his  lifetime,  who  was  the  administrator  of  said  R.  H.  de- 
57 


450  Declarations  in  debt. 

ceased,  complain  of  W.  C.  and  D.  B.  defendants  in  custody, 
and  who  are  the  only  surviving  obligors  of  E.  J5.,  N.  B.,  D.  B., 
W.  C.  and  D.  B.  of  a  plea  that  the  defendants  render  to  the 
plaintiffs  for  the  benefit  of  the  said  W.  A.  the  sum  of  fifteen  thou- 
sand dollars,  which  the  defendants  owe  to  the  plaintiffs,  and  from 
them  unjustly  detain.  For  that  whereas  the  said  W.  C.  and  D. 
B.  defendants,  together  with  E.  B.,  N.  B.  and  D.  B.  on  the  ninth 
day  of  February  in  the  j'ear  1807,  in  the  county  aforesaid,  made 
their  certain  writing  obligatory,  sealed  with  their  seals,  and  to 
the  court  now  here  shewn,  the  date  whereof  is  the  same  day 
and  year  aforesaid,  by  which  writing  obligatory  they  acknow- 
ledged themselves  to  be  held  and  firmly  bound  unto  the  said  S. 
A.,  B.  F.,  J.  J.  and  P.  P.  gentlemen  justices  of  the  court  for  the 
county  of  B.  then  sitting,  in  the  sum  of  fifteen  thousand  dollars, 
to  the  payment  whereof,  well  and  truly  to  be  made  to  the  said 
justices  and  their  successors,  they  the  said  E.  B.,  N.  B.,  D.  B., 
W.  C.  and  D.  B.  bound  themselves,  and  each  of  them,  their,  and 
each  of  their,  heirs,  executors  and  administrators,  jointly  and 
severally  ;  to  which  said  writing  obligatory,  there  was  neverthe- 
less a  condition  underwritten  and  thereto  annexed,  which  con- 
dition is  to  the  following  tenour  and  effect,  viz  :  The  condition  of 
the  above  obligation  (viz:  the  writing  obligatory  aforesaid)  is, 
that  if  the  said  E.  B.,  administratrix  of  all  the  goods,  chattels 
and  credits  of  the  said  R.  B.  deceased,  do  make  a  true  and 
perfect  inventory  of  all  and  singular  the  goods,  chattels  and 
credits  of  the  said  deceased,  which  have  or  shall  come  to  the 
hands,  possession  or  knowledge  of  her  the  said  E.  or  in  the 
hands  or  possession  of  any  other  person  or  persons  for  her,  and 
the  same  so  made  do  exhibit  into  the  said  court  of  B.  county, 
when  she  shall  be  thereto  required  by  the  said  court,  and  such 
goods,  chattels  and  credits  do  Well  and  truly  administer  accord- 
ing to  law,  and  further  do  make  a  just  and  true  account  of  her 
actings  and  doings  therein,  when  thereto  required  by  the  said 
court,  and  all  the  rest  of  the  said  goods,  chattels  and  credits, 
which  shall  be  found  remaining  upon  the  account  of  the  said  ad- 
ministratrix, the  same  being  first  examined  and  allowed  by  the 
justices  of  the  said  court  for  the  time  being,  shall  deliver  and 
pay  unto  such  persons  respectively  as  are  entitled  to  the  same 
by  law,  and  if  it  shall  hereafter  appear  that  any  last  will  and 
testament  was  made  by  the  deceased,  and  the  same  be  proved 
in  court,  and  the  executor  obtain  a  certificate  of  probat  thereof, 
and  the  said  E.  do  in  such  case,  being  required,  render  and  de- 
liver up  her  letters  of  administration,  then  this  obligation  to  be 
void,  else  to  remain  in  full  force.  And  the  plaintiffs,  in  fact, 
say  that  the  said  E.  B.  has  not  kept,  performed  and  fulfilled  the 
condition  aforesaid,  of  the  said  writing  obligatory,  but  has  alio- 


Declarations  in  debt.  451 

gether  failed  so  to  do,  and  has  broken  the  same,  and,  in  divers 
instances  and  at  various  times,  has  failed  to  comply  with,  and 
perform  the  same.  And  the  plaintiffs  expressly  aver  that  the 
said  £. "administratrix  as  aforesaid,  did  not  administer  the  goods, 
chattels  and  credits  of  the  said  R.  B.  deceased,  according  to 
law  and  agreeably  to  her  undertaking.  And  proceeding  to  al- 
lege particular  breaches  of  the  said  condition, t  the  plaintiffs  say 
that  a  suit  was  instituted  by  R.  H.  in  the  county  court  of  B.  on 

the day  of and  year ,  to  recover  of  the  said 

E.  B.  administratrix  asaforesaid,  the  amount  of  a  bond  executed 
to  the  said  R.  H.  by  the  said  jR.  B.  for  the  sum  of  £  125.  2.  9^. 
under  the  penalty  of  £  254.  5.  6^. ;  that  the  said  R.  H.  died  be- 
fore judgment,  and  administration  of  his  estate  was  granted  to 
M.  H.  with  his  will  annexed,  in  the  county  court  aforesaid,  ac- 
cording to  law,  and  she  prosecuted  the  said  suit  and  obtained  a 
judgment  against  the  said  E.  B.  administratrix  as  aforesaid,  in 
the  county  aforesaid,  for  the  sum  of  ,£250.  5.  6J.  and  costs,  to 
be  levied  of  the  goods  and  chattels  of  the  said  R.  B.  in  the 
hands  of  the  said  E.  to  be  administered,  if  so  much  thereof 
she  hath,  but  if  not,  then  the  costs  to  be  levied  of  her  own  pro- 
per goods  and  chattels,  which  said  judgment  was  however 
to  be  discharged  by  the  payment  of  £  125.  2.  9:^.  with  law- 
ful interest  thereon  from  the  first  day  of  September  1801  and 
costs,  subject  to  the  following  credits  :  ^  2.  3.  2.  February  1802  ; 
^1.  10.  0.  March  1802,  and  ^6.  17.  9.  April  1802.  And  the 
plaintiffs,  in  fact,  say  that  the  said  E.  administratrix  as  aforesaid, 
appealed  from  the  judgment  aforesaid  to  the  superior  court  of 
law  for  the  said  county  of  B.  and  the  said  superior  court  of  law, 
after  hearing  the  parties,  affirmed  the  judgment  of  the  county 
court  with  damages  and  costs  to  the  appellees.  And  the  plain- 
tiffs aver  that  the  damages  incurred  according  to  law,  amount 
to  the  sum  of  £  8.  and  the  costs  recovered  in  the  said  superior 

court  amount  to  $ ;  on  which  said  judgment  an  execution 

o^  fieri  facias  was  sued  out  against  the  goods  and  chattels  of  the 
said  R.  B.  in  the  hands  of  the  said  E.  to  be  administered,  and 
directed  to  the  sheriff  of  B.  county,  which  said  execution  was 
delivered  to  S.  P.  deputy  sheriff  for  J.  P.  then  sheriff  of  B. 
county,  who  made  the  following  return,  viz  :  "No  unadministered 
or  unincumbered  effects,  whereof  I  can  make  the  within  debt, 
damages  and  costs.  S.  P.  deputy  for  J.  P.  sheriff  of  B. 
county."  All  of  which,  by  the  records  and  proceedings  remain- 
ing in  the  county  and  superior  court  of  law  for  jB.,  manifestly  ap- 
pears. Whereupon  the  said  plaintiffs  in  fact  further  say,  that 
the  judgment  aforesaid  for  the  sum  of  ^£  250.  5.  6J.  and  the 
costs  and  damages,  remains  in  full  force  and  effect,  no  ways  re- 
versed, annulled  or  satisfied.     And  the  plaintiffs,  in  fact,  say, 


452  Declarations  in  debt. 

that  at  the  lime  when  the  judgment  aforesaid,  in  form  aforesaid, 
was  rendered,  and  at  ihe  lime  of  issuing  and  returning  ihe^m 
facias,  to  wit,  on  the  22d  April  1813,  in  ihe  county  aforesaid, 
within  the  jurisdiction  of  this  court,  divers  goods  and  chattels, 
which  were  of  the  said  R.  B.  at  the  time  of  his  death,  to  the 
value  of  £  500.  sufficient  then  to  have  satisfied  the  said  judg- 
ment, costs  and  damages,  had  come  to  the  hands  of  the  said  E. 
B.  to  be  administered,  which  said  goods  and  chattels  the  said 
E.  B.  administratrix  aforesaid,  afterwards,  viz  :  on  the  same 
day  and  year  last  aforesaid,  at  the  county  aforesaid,  and  within 
the  jurisdiction  aforesaid,  sold,  eloigned,  wasted,  converted  and 
disposed  of,  to  her  own  proper  use,  in  violation  of  the  laws  of 
the  land,  and  of  her  undertaking  in  the  condition  of  the  said 
writing  obligatory.  By  reason  whereof,  and  by  virtue  of  an  act 
of  assembly  in  such  case  made  and  provided,  an  action  hath 
accrued  to  the  plaintiffs  to  demand  and  have  of  the  defendants 
W.  C.  and  D.  B.  surviving  obligors  as  aforesaid,  the  said  sum  of 
fifteen  thousand  dollars,  for  the  use  of  the  said  W.  A.  who  is  ad- 
ministrator de  bonis  non  of  B.  H.  deceased.  Nevertheless  the 
said  defendants,  although  often  requested  so  to  do,  have  not,  nor 
hath  either  of  them,  nor  hath  any  other  person,  as  yet,  paid  to 
the  plaintiffs  the  said  sum  of  fifteen  thousand  dollars,  or  any 
part  thereof,  but  &c.  (as  in  No.  8.) 

*  It  is  necessary  that  it  should  appear  that  the  plaintiffs  sue  as  jus- 
tices, and  for  whose  benefit  the  suit  is  brought.  Cabell  Sfc.  v.  Hard- 
wick,  1  Call  345.  The  relator  in  a  suit  on  an  official  bond  ought  always 
to  set  out  in  the  pleadings  his  interest  in  and  claim  to  relief  upon  it. 
Brooke,  pres't,  in  Cowling  v.  Nansemond  justices,  6  Rand.  252. 

f  It  is  indispensable  that  a  breach  or  breaches  of  the  condition  of  the 
bond  be  assigned  in  the  declaration,  or  in  some  other  part  of  the  record. 
Ward  6fc.  v.  The  Fairfax  justices,  4  Munf.  494. 

29.   On  a  guardian's  bond. 

An  action  lies  against  the  surety  in  a  guardian's  bond,  without  any 
previous  suit  against  the  principal.  The  principles  upon  which  it  was 
formerly  determined  that  an  action  could  not  be  maintained  upon  the 
bond  of  an  executor  or  administrator  until  a  devastavit  was  established, 
in  a  previous  suit,  apply  only  to  the  cases  of  executors  and  administra- 
tors, and  have  no  relation  to  a  suit  upon  a  guardian's  bond.  Call  v. 
Ruffin,  1  Call  333. 

A  bond  given  by  a  guardian  to  his  ward  after  the  latter  had  attained 
full  age,  for  a  specific  sum  stated  to  be  the  balance  due  upon  a  settle- 
ment of  the  guardianship  account,  will  be  taken  as  |>rj»ia  yafj'e  evi- 
dence of  the  amount  due  by  the  guardian,  in  an  action  against  his  sure- 
ty, but  this  prima  facie  evidence  will  be  liable  to  be  repelled  by  other 
evidence  on  the  part  of  the  surety.     Brooke,  president,  in  Hamlin's 


Declarations  in  debt.  453 

adniW  V.  Atkinson  Sfc.  6  Rand.  579.  The  acceptance  by  the  ward  of 
such  a  bond,  and  the  fact  that  partial  payments  had  been  made  thereon, 
will  not  however  constitute  a  discharge  of  the  surety.  At  all  events,  it 
is  not  such  a  discharge  as  the  surety  can  give  in  evidence  under  the  plea 
of  conditions  performed,  in  an  action  against  him  on  the  guardian's 
bond,     Hamlin's  adm'r  v.  Atkinson  Sfc.  6  Rand.  574. 

H.  county,  to  wit : 

J.  T.  &c.  (naming  them)  gentlemen  justices  of  the  court  of 
hustings  for  the  city  of  R.  and  successors  of  J.  A..,  S.  M.,  J.  G. 
and  J.  R.  late  justices  of  the  said  court,  who  sue  for  the  benefit 
and  at  the  costs  of  A.  P.  P.  complain  of  W.  D.  W.  adminis- 
trator of  the  personal  estate  of  R.  D.  deceased,  being  in  custo- 
dy &c.  of  a  plea  that  he  render  to  the  said  plaintiffs  the  sum  of 
five  thousand  dollars,  which  from  the  said  plaintiff's  the  said  TV. 
D.  W.  unjustly  doth  detain.  And  thereupon  the  said  plaintiffs 
say  that  heretofore,  and  in  the  lifetime  of  the  said  R.  D.  to  wit, 
at  a  court  of  hustings  held  for  the  city  of  R.  on  the  nineteenth 
day  of  October  1820  (the  said  court  then  and  still  being  holden 
at  the  said  city  and  in  the  said  county  of  H.)  a  certain  TV.  D.  P. 
was,  by  the  said  court  of  hustings,  assigned  guardian  to  the 
said  A.  P.  P.  and  to  one  J.  H.  P.  which  said  A.  P.  P.  and  J. 
H.  P.  were  orphans  of  TT^.  P.  deceased  ;  and  thereupon,  to  wit, 
on  the  said  nineteenth  day  of  October  1820,  at  the  said  city  of 
R.  and  in  the  said  county  of  H.  the  said  TV.  D.  P.  and  R.  D. 
made  their  certain  writing  obligatory,  sealed  with  their  seals, 
(which  said  writing  obligatory  now  remains  filed  among  the  re- 
cords of  the  said  court  of  hustings,  and  a  copy  whereof,  duly 
attested  by  the  clerk  of  the  said  court  of  hustings,  is  to  the  said 
superior  court  of  law  now  here  shewn),  by  which  said  writing 
obligatory  the  said  TV.  D.  P.. and  R.  JD.  acknowledged  them- 
selves to  be  held  and  firmly  bound  unto  the  said  J.  A.,  S.  M.,  J. 
G.  and  J.  R.  gentlemen  justices  of  the  court  of  hustings  for  the 
city  of  i?.  then  sitting,  in  the  sum  of  five  thousand  dollars  above 
demanded,  to  the  payment  whereof,  well  and  truly  to  be  made 
to  the  said  justices  and  their  successors,  they  bound  themselves, 
and  each  of  them,  their,  and  each  of  their,  heirs,  executors  and 
administrators,  jointly  and  severally,  firmly  by  the  said  writing 
obligatory  ;  which  said  writing  obligatory  was,  and  is,  subject  to 
a  certain  condition,  thereunder  written,  to  the  effect  following, 
to  wit :  that  if  the  said  TV.  D.  P.  his  executors  and  administra- 
tors, should  well  and  truly  pay  and  deliver,  or  cause  to  be  paid 
and  delivered,  unto  the  said  A.  P.  P.  and  J.  H.  P.  orphans  of 
TV.  P.  deceased,  all  such  estate  or  estates  as  then  was,  or  were, 
or  thereafter  should  appear  to  be,  due  to  the  said  orphans,  when, 
and  as  soon  as,  they  should  attainto  lawful  age,  or  when  thereto 


464  Declarations  in  debt, 

required  by  the  justices  of  the  said  hustings  court,  as  also  keep 
harmless  the  said  justices  last  above  named,  their,  and  every 
one  of"  their,  heirs,  executors  and  administrators,  from  all  trouble 
and  damages  that  should,  or  might,  arise  about  the  said  estate, 
then  the  said  obligation  was,  to  be  void,  otherwise  to  remain  in 
full  force.'  And  the  said  plaintiffs  aver  that  the  said  A.  P.  P. 
has  attained  to  lawful  age,  and  that  the  said  W.  D.  P.  has  not 
paid  and  delivered,  or  caused  to  be  paid  and  delivered,  unto  the 
said  A.  P.  P.  all  such  estate  as  appears  to  be  due  to  her  the 
said  A.  P.  P.  but  the  said  W.  D.  P.  has  failed  so  to  do  in  this, 
to  wit :  that  at  a  court  of  hustings  held  for  the  said  city  of  i?.  on 
the  twenty-fifth  day  of  October  1828,  (the  said  court  then  and 
still  being  holden  at  the  said  city  and  in  the  said  county  of  H.) 
it  was,  by  the  said  court,  ordered  that  the  said  W.  D.  P.  guar- 
dian of  A.  P.  P.  and  J.  H.  P.  should  settle  the  accounts  of  his 
guardianship  before  H.  B.  commissioner  of  the  said  court,  who 
was  required  to  audit  and  state  the  same  and  make  report  there- 
of to  the  court;  and  afterwards  to  wit:  at  a  court  of  hustings 
held  for  the  said  city  of  R.  on  the  23d  day  of  January  1829, 
(the  said  court  then  and  still  being  holden  at  the  said  city  and 
in  the  said  county  of  H.)  the  said  commissioner  made  a  report 
of  the  account  of  the  said  W.  D.  P.  as  guardian  of  the  said  A. 
P.  P.  by  which  it  appeared  that  on  the  22d  day  of  January 
1829  the  sum  of  nine  hundred  and  twenty  dollars  and  fifty-seven 
cents,  with  interest  thereon  from  the  eleventh  day  of  July  1825 
till  payment,  was  due  from  the  said  W.  D.  P.  to  the  said  A.  P. 
P.  and  the  said  account  of  the  said  W.  D.  P.  as  guardian  of  the 
said  A.  P.  P.  was  thereupon,  to  wit,  on  the  said  23d  day  of 
January  1829,  at  the  said  city,  and  in  the  county  aforesaid,  con- 
firmed by  the  said  court  of  hustings  and  ordered  to  be  recorded. 
And  the  said  plaintiffs  aver  that  the  said  sum  ot"  nine  hundred 
and  twenty  dollars  and  fifty-seven  cents,  with  interest  as  afore- 
said, so  appearing  to  be  due  to  the  said  A.  P.  P.  is  still  due  to 
her  the  said  A.  P.  P.  and  that  the  said  TV.  D.  P.  has  not  paid 
and  delivered,  or  cause  to  be  paid  and  delivered,  the  same  to 
her  the  said  A.  P.  P.  although,  since  she  the  said  A.  P.  P.  has 
attained  to  lawful  age,  the  said  W.  D.  P.  has  been  thereto  often 
recmired,  but  the  said  W.  D.  P.  to  pay  the  same,  or  cause  the 
same  to  be  paid,  hath  hitherto  wholly  neglected  and  refused, 
and  still  neglects  and  refuses  so  to  do.  By  reason  of  which 
breach  of  the  said  condition  the  said  writing  obligatory  became 
forfeited,  and  thereby  an  action  has  accrued  to  the  plaintiffs  as 
successors  of  J.  A.,  S.  M.,  J.  G.  and  J.  R.  late  justices  of  the 
said  court  of  hustings,  lo  demand  and  have  of  and  from  the 
said  W.  D.  W.  administrator  as  aforesaid,  the  said  sum  of  five 
thousand  dollars.     Nevertheless  the  said  R.  D.  deceased,  in  his 


Declarations  in  debt.  455 

lifetime,  and  the  said  W.  D.  W.  administrator  as  aforesaid, 
since  the  death  of  the  said  R.  and  the  said  W.  D.  P.  (although 
thereunto  often  requested)  have  not,  nor  hath  either  of  them,  as 
yet,  paid  to  the  said  plaintiffs  the  said  sum  of  five  thousand  dol- 
lars above  demanded,  or  any  part  thereof;  but  to  pay  the  same, 
or  any  part  thereof,  the  said  11.  D.  deceased,  in  his  lifetime,  and 
the  said  W.  D.  TV.  administrator  as  aforesaid,  since  his  death, 
and  the  said  W.  D.  P.  have,  hitherto,  wholly  neglected  and  re- 
fused, and  the  said  W.  D.  W.  administrator  as  aforesaid,  still 
neglects  and  refuses,  to  the  damage  of  the  said  plaintiffs  five 
thousand  dollars  ;  and  therefore  they  bring  suit  against  the  said 
W.  D.  W.  administrator  as  aforesaid. 

30.   On  a  refunding  bond  given  by  legatees  or  distributees  to  an  exe- 
cutor or  administrator.     1  Rob.  Prac.  58. 

In  an  action  of  debt  on  a  bond,  conditioned  "  that  the  defendants 
should  pay  unto  the  plaintiff  their  respective  proportions  of  all  debts 
which  he  should  be  compelled  to  pay  that  should  thereafter  come  against 
the  estate,"  if  the  declaration  allege  "  that  on  a  day  subsequent  to  the 
date  of  the  bond  the  plaintiff  paid  by  the  consent  of  the  defendants  a 
debt  which  was  then  due  from  the  estate,  and  which  as  administrator  he 
was  bound  to  pay,  and  that  the  defendants  had  not  paid  him  their  respec- 
tive parts,  nor  any  proportion  thereof,"  the  breach  is  well  enough  as- 
signed. For  if  an  administrator  or  executor  be  bound  to  pay  a  debt, 
and,  to  avoid  the  expense  of  a  suit,  actually  does  pay  it,  with  the  consent 
of  the  legatees  or  distributees,  it  is  the  same  as  if  he  had  paid  it  after 
judgment.     Moss  S^c.  v.  Moss's  adm'r,  4  H.  &  M.  304. 

31.  Against  an  officer  for  an  escape.     1  Rob.  Prac.  75,  6. 

In  an  action  of  debt  for  an  escape,  of  a  person  in  execution,  the  whole 
debt  is  recovered  or  nothing.  Hawkins  Sfc.  v.  Plomer  S^c.  2  W.  Bl.  1048, 
It  is  not  competent  to  the  jury  to  give  less  than  the  debt,  because  the 
damages  sustained  are  less.  Robertson  S^c.  v,  Taylor,  2  Chitty  454. 
18  Eng.  Com.  Law  Rep.  394.  But  in  an  action  on  the  case  it  would  be 
otherwise.      Tucker,  P.  in  Perkins  ^c.  v.  Giles,  governor,  9  Leigh  401. 

32.   On  a  sheriff's  bond.     1  Rob.  Prac.  60  to  63. 

Generally  speaking,  in  an  action  on  a  bond  with  collateral  condition, 
it  is  sufficient  to  assign  a  breach  in  the  words  of  the  condition.  In  Branch 
S^c.  v.  Randolph,  5  Call  546.  the  condition  was  that  if  Branch  should, 
truly  and  faithfully,  collect,  pay  and  account  for  all  taxes  imposed  in  his 
county,  by  virtue  of  a  certain  act  of  assembly,  then  the  obligation  was 
to  be  void.  And  the  only  breach  assigned  was,  that  he  had  not,  truly 
and  faithfully,  collected,  paid  and  accounted  for,  all  taxes  imposed  in 
the  said  county,  by  virtue  of  the  said  act,  but  had  altogether  failed  to 
do  so.     The  damages  were  assessed  upon  a  writ  of  enquiry,  and  the 


456  Declarations  in  debt. 

judgment  for  those  damages  was  affirmed  in  the  court  of  appeals ;  the 
assignment  of  the  breach  being  considered  not  too  general. 

But  it  has  been  held  that  where  the  condition  of  a  bond  requires  many 
things,  the  omission  of  any  one  of  which  would  constitute  a  breach,  a 
particular  breach  should  be  specified  in  the  assignment.  The  People  v. 
Brush,  6  Wend.  454.  was  an  action  of  debt  on  the  bond  of  Ketcham 
and  another,  conditioned  that  Ketcham  "  should  well  and  faithfully,  in  all 
things,  perform  and  execute  the  office  of  sheriff  of  the  county  of  Dutch- 
ess, during  his  continuance  in  the  said  office  by  virtue,  of  the  said  appoint- 
ment, without  fraud,  deceit  or  oppression."  And  the  first  breach  as- 
signed followed  the  language  of  the  condition  and  alleged,  in  general 
terms,  that  Ketcham  did  not,  well  and  faithfully,  perform  and  execute  the 
office  of  sheriff  &/C.  without  fraud,  deceit  or  oppression,  but  neglected 
and  refused  so  to  do.  This  breach  was  held  to  be  too  general.  It  was 
considered  there  would  be  inconvenience  and  hardship  in  requiring  the 
sheriff,  or  his  sureties,  to  come  into  court  with  no  other  notice  than  this. 
As  the  condition  might  have  been  broken  in  many  ways,  and  by  acts 
almost  numberless,  it  was  proper  that  the  assignment  should  shew  the 
subject  matter  of  the  complaint. 

In  an  action  on  the  bond  of  a  sheriff,  against  his  sureties,  in  which 
the  breach  assigned  is  the  escape  of  a  debtor  taken  in  execution,  though 
the  escape  may  have  been  voluntary  by  the  sheriff,  his  sureties  are  not 
necessarily  bound  for  the  full  amount  of  the  debt.  The  recovery  against 
them  will  be  confined  to  the  damages  sustained.  Perkins  Sfc.  v.  Giles, 
governor,  9  Leigh  397.  If  the  escaping  debtor  was  hopelessly  insolvent, 
there  could  be  no  damage,  and,  of  course,  only  a  nominal  recovery.  And 
so  if  the  debtor  was  of  acknowledged  ability,  though  the  creditor  might 
be  damaged  by  the  delay  and  vexation  consequent  on  the  debtor's  dis- 
charge, and  might  fairly  recover  in  an  action  on  the  bond,  yet  he  has 
not  lost  his  debt,  and  therefore  his  damage  cannot  be  measured  by  its 
amount.      Tucker,  P.  in  S.  C.  401. 

J.  T.  governor,  or  chief  magistrate,  of  the  commonwealth  of 
Virginia,  and  successor  of*  J.  P.  P.  late  governor  or  chief  magis- 
trate of  the  said  commonwealth,  who  sues  for  the  benefit  and  at  the 
costs  and  charges  of  J.  ?F.  administrator  of  the  personal  estate  of 
B.  TV.  deceased,  unadministered  by  S.  W.  deceased,  complains 
of  /.  H.  administrator  of  the  personal  estate  of  G.  S.  deceased 
(who  in  his  lifetime  was  sheriff  of  the  county  of  jFZ.),  in  custody 
&c.  of  a  plea  that  he  the  said  J.  H.  administrator  as  aforesaid, 
render  to  the  plaintiff  the  sum  of  thirty  thousand  dollars,  which 
from  him  he  unjustly  detains  :  for  that  whereas  the  said  G.  S. 
in  his  lifetime,  to  wit,  on  the  sixth  day  of  July  1818,  at  the 
county  aforesaid,  by  his  certain  writing  obligatory,  sealed  with 
his  seal,  an  attested  copy  whereof  is  to  the  court  now  here 
shewn,  the  date  whereof  is  the  day  and  year  aforesaid  (the  ori- 
ginal of  the  said  writing  obligatory  being  entered  of  record  and 
filed  in  the  county  court  of  H.  that  is  to  say,  in  this  court),  ac- 
knowledged himself  with  D.  B.,  M.  S.,  B.  G.,  R.  B.,  W.  M. 


Declarations  in  debt.  457 

B.,  T.  O.  B.,  R.  T.  and  J.  S.  to  be  held  and  firmly  bound  unto 
the  said  /.  P.  P.  then  governor  or  chief  magistrate  of  the  com- 
monwealth of  Virginia,  in  the  just  and  full  sum  of  thirty  thou- 
sand dollars,  which  said  sum  is  above  demanded  :  And  to  the 
payment  thereof,  well  and  truly  to  be  made  to  the  said  J.  P.  P. 
and  his  successors,  for  the  use  of  the  said  commonwealth,  they 
bound  themselves,  and  each  of  them,  their,  and  each  of  their, 
heirs,  executors  and  administrators,  jointly  and  severally,  firmly 
by  the  said  writing  obligatory :  which  said  writing  obligatory 
was,  and  is,  subject  to  a  certain  condition,  thereunder  written, 
whereby,  after  reciting  to  the  effect  following,  to  wit,  that  the 
said  G.  S.  was  constituted  and  appointed  high  sheriff"  of  H. 
county,  by  a  commission  from  the  governor  under  the  seal  of 
the  said  commonwealth,  dated  the  16th  day  of  June  1818,  it 
was  provided  that  if  the  said  G  S.  should,  well  and  truly,  col- 
lect all  officers'  fees  and  dues  put  into  his  hands  for  collection, 
and  should  truly  account  for  and  pay^  the  same  to  the  officers  to 
whom  such  fees  are  due,  respectively,  at  such  time  as  is  pre- 
scribed and  limited  by  law,  and  should,  well  and  truly,  execute, 
and  due  return  make,  of  all  process  and  precepts  to  him  di- 
rected, and  satisfy  all  sums  of  money  and  tobacco,  by  him  re- 
ceived, by  virtue  of  any  such  process,  to  the  person  or  persons 
to  whom  the  same  are  due,  his,  her  or  their  executors,  adminis- 
trators, or  assigns,  and,  in  all  things,  should,  truly  and  faithfully, 
execute  and  perform  the  said  office  of  sheriff,  during  the  time 
of  his  continuance  therein,  then  the  said  obligation  was  to  be 
void,  or  else  remain  in  full  force  and  virtue. 

And  the  plaintiff"  avers  that  the  said  G.  S.  did  not  perform 
the  condition  of  the  said  writing  obligatory,  but  therein  wholly 
failed  and  made  default.  And  the  said  plaintiff",  for  assigning  a 
breach  of  the  condition  of  the  said  writing  obligatory,  accoi'd- 
ing  to  the  form  of  the  statute  in  such  case  made  and  provided, 
says  that  heretofore,  to  wit,  at  a  superior  court  of  law  held  for 
the  said  county  of  H.  at  the  capitol  in  the  city  of  R.  to  wit,  in 
the  same  county  of  H.  on  the  26th  day  of  September  1818,  be- 
fore the  judge  of  the  said  court,  by  the  judgment  of  that  court, 
the  said  S.  W.  then  in  full  life,  and  administratrix  of  the  perso- 
nal estate  of  the  said  B.  W.  deceased,  as  such  administratrix, 
recovered  against  a  certain  A.  C.  and  a  certain  A.  T.  the  secu- 
rity for  his  appearance,  a  certain  debt  of  $491.60  cents,  and 
also  $  7.63  cents  for  the  costs  by  the  said  S.  W.  about  her  suit 
expended  ;  but  the  said  judgment  was  to  be  discharged  by  the 
payment  of  $245.80  cents,  v/ith  interest  thereon  to  be  computed 
after  the  rate  of  six  jier  centum  per  annum  from  the  thirtieth  day 
of  May  1816  till  payment,  and  the  costs  aforesaid,  as  by  the  re- 
cord and  proceedings  thereof,  in  the  said  superior  court  of  law 
58 


458  Declarations  in  debt. 

still  remaining,  will  nnore  fully  appear.  And  the  said  plaintiff 
further  saith,  that  the  said  judgment  being  in  full  force,  and  t-he 
money  thereby  recovered  remaining  unsatisfied,  she  the  said  S. 
W.  for  obtaining  satisfaction  of  the  same,  afterwards,  to  wit, 
on  the  28th  day  of  September  1818,  sued  and  prosecuted,  out 
of  the  said  superior  court  of  law,  a  certain  writ  of  the  common- 
wealth, called  n.  fieri  facias,  directed  to  the  sheriff  of 

county,  by  which  said  writ  the  said  sheriff  was  commanded  that 
of  the  goods  and  chattels  of  the  said  A.  C.  and  the  said  A.  T. 
the  security  for  his  appearance,  in  his  the  said  sheriff's  baili- 
wick, he  should  cause  to  be  made  the  said  $491.60  cents,  the 
debt,  and  $7.63  cents,  the  costs  aforesaid  ;  and  the  said  sheriff 
was  also  commanded  to  make  known  how  he  should  execute 
that  writ,  at  the  rules  to  be  holden  in  the  clerk's  office  of  the 
said  superior  court,  on  the  19th  day  of  January  next  after  the 
date  of  the  said  writ,  and  also  to  have,  then  and  there,  the  said 
writ;  to  which  said  writ  a  memorandum  was  subjoined  to  the 
effect  following,  to  wit,  that  the  same  was  to  be  discharged  by 
the  payment  of  245  dollars  and  80  cents,  with  interest  thereon 
to  be  computed  at  the  rate  of  six  'pcr  centum  per  annum  from  the 
30th  day  of  May  1816  till  payment,  and  the  costs  therein  men- 
tioned, to  wit,  the  said  $  7.63  cents.  And  the  said  writ  of  fieri 
facias,  with  the  memorandum  subjoined  thereto  as  aforesaid, 
and  before  the  return  day  thereof,  to  wit,  on  the  seventeenth 
day  of  October  1818,  at  the  said  county  of  H.  was  delivered  to 
one  R.  B.  who,  then  and  there,  and  from  thence,  until,  and  after 
the  return  of  the  said  writ,  was  a  duly  qualified  deputy  of  the 
said  G.  S.  who,  then  and  there,  and  from  thence,  until,  and 
after  the  return  of  the  said  writ,  was  sheriff  of  the  said  county 
of  H.  to  be  executed  in  due  form  of  law.  By  virtue  of  which 
writ,  the  said  R.  B.  so  being  a  deputy  of  the  said  G.  S.  who 
was  sheriff  of  the  said  county  of  H.  as  aforesaid,  afterwards, 

and  before  the  return  of  the  said  writ,  to  wit,  on  the  day 

of ,  at  the  county  aforesaid,  and  within  his  bailiwick,  as 

such  deputy  sheriff,  seized  and  took  in  execution,  divers  goods 
and  chattels  of  the  said  A.  C.  of  great  value,  to  wit,  of  the  va- 
lue of  the  said  245  dollars  80  cents,  with  interest  as  aforesaid, 
and  the  costs  aforesaid,  whereout  he  might  have  levied  the  same. 
Yet  the  said  R.  B.  so  being  such  deputy  sheriff  of  the  county 
of  H.  as  aforesaid,  not  regarding  his  duty  as  such,  but  contri- 
ving, and,  wrongfully  and  unjustly,  intending  to  injure  and  pre-^ 
judice  the  said  »S.  W.  administratrix  as  aforesaid,  in  that  behalf,  " 
and  to  deprive  her  of  the  said  last  mentioned  money,  with  in- 
terest and  costs,  and  of  the  means  of  obtaining  the  same,  did  not 
pay  the  said  money,  with  interest  and  costs  as  aforesaid,  to  the 
said  S.  W.  at  the  return  of  the  said  writ;  and  at  the  return  of 


Declarations  in  debt.  459 

the  said  writ,  to  wit,  at  the  rules  holden  in  the  clerk's  office  of 
the  said  superior  court  on  the  19lh  day  of  January  1819,  the 
said  11.  B.  falsely  and  deceitfully  made  a  return  upon  the  said 
writ  in  the  words  following,  to  wit:  "  Levied  upon  two  mules, 
and  three  carts  and  gear,  the  property  of  A.  C.  Bond  and  se- 
curity taken  for  the  delivery  of  the  same  at  the  time  and  place 
of  sale,  and  forfeited.  R.  B.  deputy  for  G.  S.,  S.  H.  C."  as  by 
the  said  writ,  and  the  return  thereof,  remaining  of  record  in  the 
said  superior  court  of  law,  fully  appears.  And  the  plaintiff 
doth  aver  that  the  said  return  is  false  and  deceitful  in  this,  that 
the  said  R.  B.  deputy  as  aforesaid,  did  not  take  security  for  the 
delivery  of  the  said  two  mules,  and  three  carts  and  gear,  the 
property  of  A.  C.  (upon  which  the  said  writ  of  Jieri  facias  had 
been  levied),  at  the  time  and  place  of  sale,  but  suffered  the  said 
two  mules,  and  three  carts  and  gear  to  remain  in  the  possession 
of  the  said  A.  C.  after  the  said  writ  of  Jieri  facias  had  been  le- 
vied thereon,  without  taking  any  security  from  the  said  A.  C. 
for  the  delivery  of  the  said  two  mules,  and  three  carts  and  gear, 
at  the  time  and  place  of  sale,  without  the  leave  or  license  of 
the  said  S.  W.  administratrix  as  aforesaid,  and  against  her  will 
and  consent.  By  means  of  which  said  premises,  the  said  S. 
W.  administratrix  as  aforesaid  of  the  said  B.  TV.  deceased,  was, 
in  her  lifetime,  injured  and  deprived,  and  the  said  J.  TV.  admi- 
nistrator of  the  personal  estate  of  B.  TV.  deceased,  unadminis- 
tered  by  the  said  S.  TV.  since  her  death,  hath  been  injured  and 
deprived  of  the  means  of  obtaining  the  said  sum  of  245  dollars 
80  cents,  with  interest  and  costs  as  aforesaid  :  And  the  said 
sum,  with  interest  and  costs,  is  still  wholly  unpaid.  And  so, 
by  reason  of  the  breach  of  the  condition  of  the  said  writing 
obligatory  above  assigned,  the  said  writing  obligatory  became 
forfeited,  and  thereby,  and  by  virtue  of  the  act  of  assembly  in 
such  case  made  and  provided,  an  action  has  accrued  to  the 
plaintiff,  governor,  and  successor  as  aforesaid,  to  demand  and 
have  of  the  said  G.  S.  deceased,  in  his  lifetime,  and  of  the  said 
J.  H.  his  administrator,  since  his  death,  the  said  sum  of  $  30,000 
above  demanded.  Yet  the  said  G.  S.  in  his  lifetime,  and  the 
said  /.  H.  administrator  as  aforesaid,  since  his  death,  (although 
often  requested  so  to  do,)  have  not,  nor  has  either  of  them,  as 
yet,  paid  the  said  sum  of  $  30,000,  or  any  part  thereof,  to  the 
said  J.  P.  P.  late  governor  as  aforesaid,  or  to  any  of  his  suc- 
cessors, or  to  the  plaintiff;  neither  have  the  said  J9.  B.,  M.  S., 
B.  G.,  R.  B.,  TV.  M.  B.,  T.  O.  B.,  R.  T.  and  J.  S.,  or  any  person 
or  persons  whatever,  paid  to  the  said  J.  P.  P.  or  any  of  his  suc- 
cessors, or  to  the  plaintiff,  the  said  sum  of  thirty  thousand  dol- 
lars, or  any  part  thereof,  but  to  pay  the  same  they  have,  and 
each  of  them   hath,  hitherto  wholly  refused  ;  and  they  do,  and 


460  Declarations  in  debt. 

each  of  them  doth,  still  refuse  to  the  damage  of  the  plaintiff 
$200,  and  therefore  he  brings  suit.  And  the  plaintiff' brings 
here  into  court  the  letters  of  administration  granted  to  the  said 
J.  W.  whereby  it  fully  appears  to  the  said  court  here  that  the 
said  J.  W.  is  administrator  of  the  personal  estate  of  the  said  B. 
W.  deceased,  unadministered  by  the  said  S.  W,  deceased. 

*  In  Barnett's  ex^or  v.  Giles,  governor,  6  Leigh  316.  the  action  was 
in  the  name  of  Giles,  governor  of  Virginia,  successor  of  Tyler,  former 
governor,  and  the  defendant  pleaded  that  mr.  Giles  was  not,  but 
mr.  Monroe  was,  the  successor  of  governor  Tyler,  to  whom  the  bond 
was  given.  This  plea,  though  evidently  filed  to  entrap,  could  not  be 
pronounced  to  be  bad  in  substance.  It  amounted,  in  effect,  to  a  denial 
of  the  right  of  mr.  Giles  to  sue  as  the  successor  of  governor  Tyler, 
and  if  the  fact  were  true,  as  stated  in  the  plea,  it  is  obvious  that  mr. 
Giles  could  have  no  right  to  sue.  The  plaintiff  having  demurred,  in- 
stead of  replying,  the  court  was  constrained  to  consider  the  fact  stated 
in  the  plea  as  admitted,  and,  as  a  necessary  consequence,  was  obliged 
to  hold  the  plea  to  be  good, 

33.   On  the  bond  of  a  constable  for  h'cach  of  duty,  under  a  distress 
for  rent.     1  Rob.  Prac.  61.  62. 

J.  F.  governor  of  the  commonwealth  of  Virginia,  and  suc- 
cessor to  W.  B.  G.  late  governor  of  the  said  commonwealth,  who 
sues  at  the  instance  of  H.  A.  C,  D.  L.  D.,  and  J.  H.,  and  at 
their  costs  and  charges,  complains  of  J.  C,  J.  B.  C,  TV.  S., 
and  R.  H.  K.  being  in  custody  &c.  of  a  plea  that  they  render 
unto  the  said  plaintiff"  the  sum  of  $  6000,  which  to  the  said 
plaintiff"  they  owe,  and  from  him  unjustly  detain.  And  there- 
upon the  said  plaintiff"  saith  that  heretofore,  to  wit,  at  a  court  of 
hustings  held  for  the  city  of  i?.  on  the  twenty-seventh  day  of 
November  1829,  to  wit,  in  the  said  county  of  H.  the  said  court 
of  hustings  did  appoint  the  said  J.  C.  constable  of  the  said  city, 
and  afterwards,  during  the  same  term  of  the  said  court,  to  wit, 
at  a  court  of  hustings  held  for  the  said  city  of  R.  on  the  fifth 
day  of  December  1829,  to  wit,  in  the  said  county  of  if.  the  said 
J.  C.  qualified  to  his  said  appointment  by  taking  the  several 
oaths  required  by  law,  and,  with  the  said  J.  B.  C.,  W.  S.  and 
R.  H.  K.  his  securities,  entered  into,  and  acknowledged,  a  bond 
in  the  penalty  of  $6000,  (which  penalty  included  a  penalty  of 
$5000,  and  also  a  further  sum  of  $1000,  which  to  the  said 
court  of  hustings  seemed  necessary  to  be  taken  as  additional 
security  of  the  constable  of  the  said  city,  in  consequence  of  the 
authority  given  him  by  law  to  execute  writs  of  capiat  ad  satisfa- 
ciendum, issued  by  the  clerk  of  the  said  hustings  court,  upon 
judgments  obtained  before  a  magistrate,)  which  bond  was  con- 


Declarations  in  debt.  461 

ditioned  as  the  law  directs,  and  was  ordered  by  the  said  court 
of  hustings  to  be  recorded,  as  by  the  record  of  the  said  order  of 
appointment,  and  the  order  setting  forth  the  quahfication  to  the 
said  appointment,  remaining  in  the  said  court  of  hustings,  to 
wit,  at  the  said  county  of  H.  fully  appears.  And  the  said  plain- 
tiff" further  saith  that  by  the  said  bond,  entered  into  and  ac- 
knowledged as  aforesaid,  to  wit,  on  the  said  fifth  day  of  De- 
cember 1829,  at  the  said  county  of  H.  which  bond  is  sealed 
with  the  seals  of  the  said  /.  C,  J.  B.  C,  W.  S.  and  R.  H.  K. 
and  dated  the  fourth  day  of  December  1829,  and  a  copy  whereof 
duly  certified  by  the  clerk  of  the  said  court  of  hustings  is  now 
here  to  the  court  shewn,  (the  original  remaining  with  the  clerk 
of  the  said  court  filed  among  the  records  of  the  said  court,)  the 
said  J.  C,  J.  B.  C,  W.  S.  and  R.  H.  K.  acknowledged  them- 
selves to  be  held  and  firmly  bound  unto  his  excellency  W.  B.  G. 
then  governor  of  the  commonwealth  of  Virginia,  in  the  just  and 
full  sum  of  $6000,  to  the  payment  whereof,  well  and  truly  to 
be  made  to  the  said  governor  and  his  successors,  for  the  use  of 
the  commonwealth,  they  bound  themselves,  and  each  of  them, 
their,  and  each  of  their,  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly,  but  the  said  bond  was,  and  is,  sub- 
ject to  a  certain  condition,  thereunder  written,  whereby,  after 
reciting  to  the  effect  following,  to  wit,  that  the  said  /.  C.  had 
been  appointed,  by  the  court  of  hustings  for  the  city  of  R.  con- 
stable of  the  said  city,  for  and  during  the  term  of  twelve  months, 
from  the  date  thereof,  it  was  provided  that  if  the  said  J.  C. 
should,  well  and  truly,  discharge  the  duties  of  his  office  afore- 
said, during  his  continuance  therein,  then  the  above  obligation 
was  to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

And  the  said  plaintiff  avers  that  although  the  said  J.  C.  has 
continued  in  the  said  office  of  constable  of  the  city  of  R.  from 
the  time  the  said  bond  was  entered  into,  and  acknowledged  as 
aforesaid,  until  and  at  and  after  the  commencement  of  this  ac- 
tion, yet  the  said  J.  C.  has  not,  well  and  truly,  discharged  the 
duties  of  his  office  aforesaid,  during  his  continuance  therein, 
but  has  neglected  and  failed  so  to  do.  And  the  said  plaintiff, 
for  assigning  a  breach  of  the  said  condition  of  the  said  bond, 
says  that  after  the  said  bond  was  entered  into,  and  acknow- 
ledged as  aforesaid,  to  wit,  on  the  sixth  day  of  March  1830,  at 
the  said  city  of  i?.  and  in  the  said  county  of  H.  divers  goods 
and  chattels  of  great  value,  to  wit,  of  the  value  of  $  750,  were 
distrained  by  the  said  J.  C.  as  constable  of  the  said  city  of  R. 
under  and  by  virtue  of  the  authority  of  the  said  H.  A.  C,  D. 
L.  D.i  and  J.  H.  for  certain  arrears  of  rent,  to  wit,  the  sum  of 
$750,  reserved  and  due  from  S.  B.  C.  and  D.  S.  M.  tavern 
keepers  and  partners  under  the  firm  of  C.  Sf  M.  to  the  said  H. 


462  Declarations  in  debt. 

A.  C;  D.  L.  D.  and  J.  H.  upon  a  contract  for  certain  premises 
in  said  city  of  R.  and  in  the  said  county  of  H.  to  wit,  the  pre- 
mises known  by  the  name  of  the  Washington  tavern  in  the  said 
city,  and  the  said  C.  ^M.  did  not  within  ten  days  after  such  dis- 
tress taken,  and  notice  thereof,  and  the  cause  of  such  taking, 
replevy  the  said  goods  and  chattels,  by  giving  security  to  pay 
the  said  rent  and  all  costs,  with  lawful  interest  for  the  same,  at 
the  end  of  three  months;  by  reason  whereof,  it  became,  and 
was,  the  duty  of  the  said  J.  C,  constable  as  aforesaid,  upon  the 
expiration  of  the  said  ten  days,  to  sell  the  goods  and  chattels  so 
distrained  for,  by  public  auction,  to  the  highest  bidder,  for 
money  to  be  paid  at  the  end  of  three  months.  And  the  plaintiff 
avers  that  the  said  J.  C.  constable  as  aforesaid,  did  not,  in  a 
reasonable  time  after  the  expiration  of  the  said  ten  days,  sell 
all  the  goods  and  chattels  so  distrained  for,  but  neglected  and 
failed  to  sell  certain  of  the  said  goods  and  chattels,  of  great 
value,  to  wit,  of  the  value  of  $  150,  for  a  long  space  of  time,  to 
wit,  from  the  expiration  of  the  said  ten  days  until  the  twenty- 
sixth  day  of  May  1830,  to  wit,  at  the  said  city  of  R.  and  in  the 
county  of  H.  aforesaid. 

And  the  said  plaintiff,  for  assigning  a  further  breach,  of  the 
said  condition  of  the  said  writing  obligatory,  according  to  the 
form  of  the  statute  in  such  case  made  and  provided,  says  that 
after  the  said  bond  was  entered  into,  and  acknowledged  as 
aforesaid,  to  wit,  on  the  sixth  day  of  March  1830,  at  the  said 
city  of  R.  and  in  the  said  county  of  H.  divers  goods  and  chat- 
tels of  great  value,  to  wit,  of  the  value  of  $  750,  were  distrained 
bj^  the  said  J.  C.  as  constable  of  the  said  city  of  R.  under  and 
by  virtue  of  the  authority  of  the  said  H.  A.  C.,  D.  L.  D.  and 
J.  H.  for  certain  arrears  of  rent,  to  wit,  for  the  sum  of  $  750, 
reserved  and  due  from  S.  B.  C.  and  D.  S.  M.  tavern  keep- 
ers and  partners  under  the  firm  of  C.  &f  M.  to  the  said  H.  A, 
C,  D.  L.  D.  and  J.  H.  upon  a  contract  for  certain  premises 
in  the  said  city  of  R.  and  in  the  said  county  of  H.  to  wit,  the 
premises  known  by  the  name  of  the  Washington  tavern  in  the 
said  city;  and  the  said  C.  &f  M.  did  not,  within  ten  days  after 
such  distress  taken  and  notice  thereof,  and  the  cause  of  such 
taking,  replevy  the  said  goods  and  chattels,  by  giving  security 
to  pay  the  said  rent,  and  all  costs,  with  lawful  interest  for  th^e 
same,  at  the  end  of  three  months;  by  reason  whereof,  it  be- 
came, and  was,  the  duty  of  the  said  /.  C.  constable  as  afore- 
said, to  sell  the  goods  and  chattels  so  distrained  for,  by  public 
auction,  to  the  highest  bidder,  for  money  to  be  paid  at  the  end 
of  three  months.  And  the  plaintiff  avers  that  although  the  said 
J.  C.  constable  as  aforesaid,  did,  afterwards,  to  wit,  on  the  se- 
venteenth day  of  March  1830,  and  on  other  days  between  that 


Declarations  in  diht.  -  463 

day  and  the  commencement  of  this  suit,  to  wit,  at  the  said  city  of 
R.  and  in  the  said  county  of  if.  make  sales  of  the  goods  and  chat- 
tels so  distrained  for,  by  public  auction,  to  the  highest  bidder, 
yet  the  said  J.  C.  constable  as  aforesaid,  did  not,  then  and  there, 
sell  the  said  goods  and  chattels,  as  he  ought  to  have  done,  for 
money  to  be  paid  at  the  end  of  three  months,  but,  then  and 
there,  sold  the  same  for  ready  money,  and  received  the  money 
therefor,  from  the  buyers,  amounting  to  a  large  sum,  to  wit, 
the  sum  of  $750.  And  the  said  plaintiff  further  avers  that  the 
said  /.  C.  constable  as  aforesaid,  hath  never  paid  the  money  so 
received,  or  any  part  thereof,  to  the  said  H.  A.  C,  D.  L.  D.  and 
J.  H.  or  either  of  them,  but  hath  wholly  neglected  and  failed  so 
to  do,  to  wit,  at  the  said  city  and  the  county  aforesaid. 

And  the  said  plaintiff,  for  assigning  a  further  breach,  of  the 
said  condition  of  the  said  writing  obligatory,  according  to  the 
form  of  the  statute  in  such  case  made  and  provided,  says  that 
after  the  said  bond  was  entered  into,  and  acknowledged  as 
aforesaid,  to  wit,  on  the  sixth  day  of  March  1830,  at  the  said 
city  of  R.  and  in  the  said  county  of  H.  divers  goods  and  chat- 
tels, of  great  value,  to  wit,  of  the  value  of  $750,  were  dis- 
trained by  the  Said  J.  C,  as  constable  of  the  said  city  of  R.  un- 
der and  by  virtue  of  the  authority  of  the  said  H.  A.  C,  D.  L. 
D.  and  J.  H.  for  certain  arrears  of  rent,  to  wit,  for  the  sum  of 
$  750,  reserved  and  due  from  S.  B.  C.  and  D.  S.  M.  tavern  keep- 
ers and  partners  under  the  firm  of  C.  ^ M.  to  the  said  H.  A. 
C,  D.  L.  D.  and  /.  H.  upon  a  contract  for  certain  premises  in 
the  said  city  of  R.  and  in  the  said  county  of  if.  to  wit,  the  pre- 
mises known  by  the  name  of  the  Washington  tavern  in  the  said 
city,  and  the  said  C.  ^M.uot  having,  within  ten  days  after  such 
distress  taken,  and  notice  thereof,  and  the  cause  of  such  taking, 
replevied  the  same,  by  giving  sufficient  security  to  the  said  J. 
C.  constable  as  aforesaid,  to  pay  the  said  rent  and  all  costs, 
with  lawful  interest  for  the  same,  at  the  end  of  three  months, 
the  said  J.  C.  constable  as  aforesaid,  after  the  expiration  of  the 
said  ten  days,  to  wit,  on  the  seventeenth  day  of  March  1830, 
and  on  divers  other  days  between  that  day  and  the  commence- 
ment of  this  suit,  to  wit,  at  the  said  city,  and  in  the  county 
aforesaid,  did  make  sales  of  the  goods  and  chattels  so  distrained 
for,  by  public  auction,  to  the  highest  bidder,  for  money  to  be 
paid  at  the  end  of  three  months;  by  reason  whereof  it  became, 
and  was,  the  duty  of  the  said  J.  C.  constable  as  aforesaid,  to 
take  bonds  of  the  buyers  of  the  goods  and  chattels  so  sold,  with 
sufficient  security  to  pay  the  money  for  which  the  same  were 
sold,  with  interest,  to  the  said  if.  A.  C,  D.  L.  D.  and  J.  if.  the 
landlords  for  whom  the  said  distress  was  made,  at  the  end  of 
three  months.     And  the  plaintiff  avers  that  the  said  J.  C.  con- 


464  Declarations  in  debt. 

stable  as  aforesaid,  did  not,  on  the  days  of  making  the  said 
sales,  or  at  any  other  time  or  times  before  the  commencement  of 
this  suit,  take  bonds,  of  the  buyers  of  the  goods  and  chattels  so 
sold,  with  sufficient  security,  to  pay  the  money,'  for  which  the 
said  goods  and  chattels  were  sold,  with  interest,  to  the  said  C. 
D.  and  H.  at  the  end  of  three  months  ;  but  the  said  J.  C.  instead 
of  taking  such  bonds,  (as  he  ought  to  have  done  as  constable 
aforesaid,)  received  from  the  buyers  of  the  said  goods  and  chat- 
tels the  money,  for  which  the  same  were  sold,  amounting  to  a 
large  sum,  to  wit,  the  sum  of  $750.  And  the  plaintiff  further 
avers  that  the  said  J.  C.  constable  as  aforesaid,  hath  never  paid 
the  money  so  received,  or  any  part  thereof,  to  the  said  H.  A.  C, 
D.  L.  D.  and  J.  H.  or  either  of  them,  but  has  wholly  neglected 
and  failed  so  to  do. 

And  the  said  plaintiff,  for  assigning  a  further  breach,  of  the 
condition  of  the  said  bond,  according  to  the  form  of  the  statute 
in  such  case  made  and  provided,  says,  that  after  the  said  bond 
was  entered  into,  and  acknowledged  as  aforesaid,  to  wit,  on  the 
sixth  day  of  March  1830,  at  the  said  city  of  iL  and  in  the  said 
county  of  H.  divers  goods  and  chattels  of  great  value,  to  wit, 
of  the  value  of  $750,  were  distrained  by  the  said  J.  C.  ascon- 
stable  of  the  said  city  of  i?.  under  and  by  virtue  of  the  authority 
of  the  said  H.  A.  C,  D.  L.  D.  and  J.  H.  for  certain  arrears  of 
rent,  to  wit,  for  the  sum  of  $750,  reserved  and  due  from  S.  B. 
C.  and  D.  S.  M.  tavern  keepers  and  partners,  under  the  firm  of 
C.  ^ M.  to  the  said  H.  A.  C,  D.  L.  D.  and  J.  H.  upon  a  con- 
tract for  certain  premises  in  the  said  city  of  R.  and  in  the  said 
county  of  H.  to  wit,  the  premises  known  by  the  name  of  the 
Washington  tavern  in  the  said  city;  and  the  said  C.  &f  M.  not 
having,  within  ten  days  after  such  distress  taken,  and  notice 
thereof,  and  the  cause  of  such  taking,  replevied  the  said  goods 
and  chattels,  by  giving  sufficient  security  to  the  said  J.  C.  con- 
stable as  aforesaid,  to  pay  the  said  rent  and  all  costs,  with  law- 
ful interest  for  the  same,  at  the  end  of  three  months,  the  said  J. 
C.  constable  as  aforesaid,  after  the  expiration  of  the  said  ten 
days,  to  wit,  on  the  seventeenth  day  of  March  1830,  at  the  said 
city  of  It.  and  in  the  said  county  of  H.  did  sell  certain  of  the 
goods  and  chattels  so  distrained  for,  by  public  auction,  to  the 
highest  bidder,  for  money  to  be  paid  at  the  end  of  three  months  ; 
and  the  money  for  which  the  said  goods  and  chattels  were,  then 
and  there,  sold  as  aforesaid,  amounted  in  the  whole  to  a  large 
sum,  to  wit,  the  sum  of  $301,  and  the  said  J.  C.  constable  as 
aforesaid,  did,  then  and  there,  take  bonds  of  the  buyers  of  the 
goods  and  chattels  so  sold,  with  security  to  pay  the  money,  for 
which  the  said  goods  and  chattels  were  sold,  with  interest,  to 
the  said  H.  A.  C,  D.  L.  D.  and  J.  H.  the  landlords  for  whom 


Declarations  in  debt.  ,     465 

the  said  distress  was  made,  at  the  end  of  three  months ;  by 
reason  whereof,  it  became,  and  was,  the  duty  of  the  said  J.  C. 
constable  as  aforesaid,  before  the  expiration  of  the  said  three 
months,  to  deliver  the  bonds  so  taken,  to  the  said  H.  A.  C,  D. 
L.  D.  and  J.  H.  the  landlords  aforesaid,  for  whom  the  said  dis- 
tress was  made.  And  the  plaintiff  avers,  that  the  said  three 
months  have  long  since  expired,  and  the  said  J.  C.  constable  as 
aforesaid,  did  not,  before  the  expiration  of  the  said  three  months, 
nor  has  he,  at  anytime  since,  delivered  the  said  bonds  so  taken, 
or  any  of  them,  to  the  said  H.  A.  C,  D.  L.  D.  and  J.  H.  the 
landlords  aforesaid  for  whom  the  said  distress  was  made,  or 
either  of  them,  but  th^  said  J.  C.  constable  as  aforesaid,  hath 
hitherto  wholly  neglected  and  refused  to  deliver  to  them  the 
bonds  so  taken,  or  any  of  them,  and  still  neglects  and  refuses  so 
to  do. 

Wherefore  the  said  plaintiff  saith  that,  by  reason  of  the  pre- 
mises herein  before  mentioned,  the  said  H.  A.  C,  D.  L.  D.  and 
J.  H.  are  injured  and  have  sustained 'damages  to'the  amount  of 
$6000,  and  the  bond  aforesaid  hath  become  forfeited,  and  there- 
by action  hath  accrued  to  the  said  plaintiff,  as  governor  of  the 
commonwealth  of  Virginia,  to  demand  and  have  of,  and  from 
the  said  J.  C,  J.  B.  C,  W.  S.  and  R.  H.  K.  the  said  sum  of 
$6000,  above  dem.anded.  Yet  the  said  J.  C,  J.  B.  C,  W.  S. 
and  R.  H.  K.  (although  often  requested  so  to  do,)  have  not,  nor 
hath  either  of  them,  as  yet  paid  the  said  sum  of  $  6000,  above 
demanded,  or  any  part  thereof,  either  to  the  said  W.  B.  G.  go- 
vernor of  the  said  commonwealth,  or  to  the  said  plaintiff  as  his 
successor  in  office,  but  to  pay  the  same  they  have,  and  each  of 
them  hath,  hitherto  wholly  refused,  and  they  do,  and  each  of 
them  doth,  still  refuse  to  pay  the  same  to  the  plaintiff,  to  the 
damage  of  the  said  plaintiff  $  6000,  and  therefore  he  brings 
suit  &c. 

34.  By  a  rmirshal  or  sheriff  on  the  bond  of  a  deputy  who  is  in  default. 

In  an  action  by  a  sheriff  upon  the  bond  given  by  his  deputy  for  the 
performance  of  his  duty,  if  the  breach,  of  the  condition,  assigned  by 
the  plaintiff,  be  the  non-return  of  a  forthcoming  bond,  it  is  no  bar  to  the 
action  that  the  plaintiff  had  theretofore  obtained  a  judgment,  by  motion, 
for  the  non-return  of  the  same  bond.  Opinion  of  court  in  Lane  v. 
Harrison,  6  Munf  573. 

In  such  action,  if  the  defendant  plead  conditions  performed,  and  the 
plaintiff,  by  his  replication,  sets  forth  a  forthcoming  bond,  taken  on  an 
execution  from  a  superior  court  of  law,  and  alleges,  as  a  breach  of  the 
condition,  the  non-return  of  the  forthcoming  bond,  to  the  countif  court 
office,, such  replication  will  be  considered  defective,  and  a  demurrer 
thereto  will  be  sustained.  Lane  v.  Harrison,  6  Munf.  573. 
59 


466  Declarations  in  debt. 

J.  P.  plaintiff,  complains  of  H.  L.  C.  administrator  of  all 
and  singular  the  goods  and  chattels,  rights  and  credits  of  A.  R. 
T.  deceased,  defendant,  in  custody  &c.  of  a  plea  that  he  render 
to  him  the  sum  of  $  40,000,  current  money  of  the  United  States, 
which  from  him  he  unjustly  detains.  For  that  whereas  the  said 
A.  R.  T.  in  his  lifetime,  to  wit,  on  the  3d  day  of  April  1822,  at 
the  county  aforesaid,  together  with  A.  TV.,  G.  N.  Gr.,  B.  D.,  J. 
S.,  H.  B.  and  W.  M.  co-obligors  with  him  the  said  T.  jointly 
and  severally  bound,  by  his  certain  writing  obligatory,  sealed 
with  his  the  said  T.^s  seal,  and  the  seals  of  his  said  co-obligors, 
and  to  the  court  now  here  shewn,  the  date  thereof  being  the 
same  day  and  year  aforesaid,  acknowledged  himself  held  and 
firmly  bound  unto  the  said  plaintiff,  by  the  name  of  J.  P.  mar- 
shal of  the  United  States  for  the  eastern  district  of  Virginia,  in 
the  just  and  full  sum  of  $  40,000,  current  money  of  the  United 
States,  to  be  paid  to  the  said  plaintiff  when  he  the  said  T.  should 
be  thereto  afterwards  requested,  with  a  condition  to  the  said 
writing  obligatory  annexed,  in  the  words  and  tenour  following, 
to  wit :  The  condition  of  the  above  obligation  is  &c.  (here  the 
condition  was  set  forth).  And  the  plaintiff  avers  that  the  said 
T.  having  been,  as  in  the  said  recited  condition  of  the  said  wri- 
ting obligatory  is  mentioned,  duly  appointed  the  plaintiff's  de- 
puty, in  the  plaintiff's  said  office  of  marshal,  for  and  during  the 
plaintiff's  term  of  office,  and  in  and  for  the  bailiwick  in  the  said 
recited  condition  described,  did,  in  fact,  hold  and  exercise  the 
said  office  of  deputy  of  the  plaintiff,  in  and  for  the  bailiwick 
aforesaid,  for  and  during  all  the  term  of  the  plaintiff's  said  of- 
fice. And  the  plaintiff  further  avers,  that  the  said  T.  did  not, 
during  his  continuance  in  his  said  office  of  deputy  of  the  plain- 
tiff, marshal  as  aforesaid,  well  and  duly  execute,  and  due  re- 
turn make,  of  all  process  and  precepts  to  the  said  marshal  di- 
rected, and  required  to  be  executed  in  the  bailiwick  in  the  said 
recited  condition  described,  for  which  the  said  T.  was  appointed 
deputy  of  the  said  marshal,  and  did  not,  during  bis  continuance 
in  his  said  office  of  deputy  of  the  plaintiff,  marshal  as  afore- 
said, pay  and  satisfy  all  sums  of  money  and  tobacco  by  him 
received,  to  the  person  or  persons,  bodies  politic  or  corporate, 
to  whom  the  same  were  due,  his,  or  their  lawful  attorney, 
executors,  administrators,  or  assigns,  and  did  not,  during 
his  continuance  in  his  said  office  of  deputy  of  the  plaintiff, 
marshal  as  aforesaid,  truly  and  faithfully,  perform,  fulfil  and 
execute  all  the  duties  pertaining  to  the  said  office  of  marshal  of 
every  kind  and  description  whatever,  in  term  time  and  vaca- 
tion, Tn  and  for  his  the  said  7Vs  bailiwick  in  the  said  recited 
condition  described,  for  which  he  was  appointed  deputy  as 
therein  mentioned,  but  the  said  2\  neglected  and  failed,  in  divers 


Declarations  in  debt.  467 

instances,  so  to  do,  and  conimitted  divers  breaches  of  the  said 
recited  condition  of  the  said  writing  obhgatory. 

And  first  in  this,  that  a  certain  warrant,  bearing  date  the  8th 
day  of  December  1S21,  w^as  issued  from  the  treasury  of  the 
United  States  under  the  hand  and  seal  of  S.  P.  agent  of  the  trea- 
sury, and  directed  to  the  plaintiff  as  marshal  of  the  eastern  dis- 
trict of  Virginia,  SNhxch  said  warrant  was  in  the  words  and  te- 
nour  following,  to  wit :  To  J.  P.  esq.  marshal  for  the  eastern  dis- 
trict of  Virginia.  Whereas  &c.  (here  the  warrant  was  set  forth). 
And  thg  plaintiff  avers  that  on  the  13th  of  the  same  month 
of  December,  the  said  recited  warrant  duly  came  to  the  hands 
of  the  said  T.  as  deputy  of  the  plaintiff,  marshal  as  aforesaid, 
to  be  executed  within  his  the  said  3\'s  bailiwick  in  the  said  re- 
cited condition  described,  and  the  said  T.  in  virtue  of  the  pre- 
cept of  the  said  warrant,  levied  the  same  upon  (among  other 
property)  certain  lands  of  the  said  W.  D.  T.  therein  named, 
situate  within  the  said  T.'s  said  bailiwick,  as  deputy  of  the 
plaintiff,  marshal  as  aforesaid,  and  the  said  T.  afterwards,  and 
during  his  continuance  in  his  said  office  of  deputy  of  the  plain- 
tiff, marshal  as  aforesaid,  in  virtue  of  the  precept  of  the  said 
warrant,  made  sale  of  the  said  lands  of  the  said  W.  D.  T.  upon 
which  he  had  levied  the  same  as  aforesaid,  and  collected  and 
received  all  the  proceeds  of  his  sales  thereof,  amounting  to  the 
sum  of  $5286. G2  cents.  Yet  the  said  T.  in  his  lifetime,  or 
since  his  death  the  said  defendant,  did  not  pay,  and  hath  never 
paid,  the  said  sum  of  $5286.62  cents,  or  any  part  thereof,  to 
the  United  States,  or  into  the  treasury  thereof,  or  to  any  officer 
thereof,  or  other  person  or  persons  entitled  to  receive  the  same, 
but  wholly  failed  and  neglected  so  to  do. 

Secondly  in  this  &c.  (To  this  breach  was  filed  the  demurrer, 
p.  24.  No.  50.  which  demurrer  was  sustained.  The  principle 
settled  on  the  demurrer  is  stated  in  1  Rob.  Prac.  532.  Pcgrani 
v.  TJiornton'' s  adm^r.) 

Thirdly,  in  this,  that  upon  a  judgment  of  the  district  court  of 
the  United  States  for  the  eastern  district  of  Virginia,  rendered 
on  the day  of  April  1824  for  the  United  States  of  Ameri- 
ca, plaintiffs  against  J.  M.  defendant,  for  750  dollars  debt  and 
costs  to  be  discharged  by  the  payment  of  375  dollars  with  in- 
terest thereon  from  the  20th  day  of  December  1823  till  pay- 
ment and  the  costs,  amounting  to  S  24.66  cts.  a  writ  o^  fieri  fa- 
cias was,  by  the  said  United  States,  sued  out  of  the  said  court, 
dated  the  19th  day  of  April  1824,  returnable  the  15lh  day  of 
October  then  next  ensuing,  and  directed  to  the  marshal  of  the 
said  district ;  and  afterwards,  and  during  the  continuance  of 
the  said  T.^s  office  as  deputy  of  the  plaintiff,  marshal  as  afore- 
said, the  said  last  mentioned  writ  o^  fieri  facias  was  duly  deli- 
vered to  the  said  T.  to  be  by  him,  as  the  plaintiff's  deputy, 


468  Declarations  in  debt. 

executed  within  his  said  bailiwick,  in  the  said  recited  condition 
of  the  said  writing  obligatory  described,  and  the  said  T.  levied 
the  said  last  mentioned  writ  of  Jieri  facias,  and,  in  virtue  of  the 
precept  thereof,  made,  collected  and  received*  the  money  due 

to  the  United  States  thereupon,  amounting  to  the  sum  of 

and  made  return  upon  the  said  last  mentioned  writ  in  the  fol- 
lowing words,  to  wit:  "  Satisfied  and  money  paid  to  the  United 
States^  And  then  returned  the  said  last  mentioned  writ  with  the 
said  recited  return  thereon  endorsed  and  signed  by  him,  as  the 
plaintiff's  deputy,  to  the  said  court.  Yet  the  plaintiff  avers  that 
the  said  T.  had  not  paid,  and  the  said  T.  in  his  lifetime,  or  the 
said  defendant  since  his  death,  did  not  pay,  and  hath  not  paid, 
the  said  sum  of so  by  the  said  T.  received  and  collect- 
ed, in  virtue  of  the  said  last  mentioned  writ,  or  any  part  thereof, 
to  the  said  United  States,  or  into  the  treasury  thereof,  or  to  any 
officer  thereof,  or  other  person  or  persons  entitled  to  receive  the 
same,  but  wholly  neglected  and  failed  so  to  do. 

Fourthly,  in  this,  that  upon  a  judgment  of  the  district  court  of 
the  United  States  for  the  eastern  district  of  Virginia  rendered  on 
the  29th  cfay  of  November  1824,  awarding  execution,  upon  a 
forthcoming  bond,  for  the  United  States  of  America  plaintiffs 
against  F.  G.  T.,  S.  O.  and  J.  S.  defendants  for  512  dollars  40 
cents,  the  penalty  of  the  said  bond  and  costs,  to  be  discharged  by 
the  payment  of  $  256.20  cts.  with  interest  from  the  15th  day 
of  August  1824  until  payment,  and  the  costs,  amounting  to 
$  28.82  cts.  a  writ  of  fieri  facias  was  by  the  said  United  States 
sued  out  of  the  said  court,  dated  the  24th  day  of  December 
1824,  returnable  the  2d  day  of  April  then  next  ensuing,  and  di- 
rected to  the  marshal  of  the  said  district;  and  afterwards,  and 
during  the  continuance  of  the  said  T.'s  office  of  deputy  of  the 
plaintiff,  marshal  as  aforesaid,  the  said  last  mentioned  writ  of 
fieri  facias  was  duly  delivered  to  the  said  T.  to  be  by  him,  as 
the  plaintiff's  deputy,  executed  within  his  bailiwick,  in  the  said 
recited  condition  of  the  said  writing  obligatory  described,' and 
the  said  T.  levied  the  said  last  mentioned  writ  of  fieri  facias, 
and,  by  virtue  of  the  precept  thereof,  made,  collected  and  re- 
ceived* the  money  due  to  the  United  States  thereupon,  amount- 
ing to  the  sum  of and  made  return  upon  the  said  last 

mentioned  writ  in  the  following  words,  to  wit:  "  The  within 
execution  is  satisfied."  And  then  returned  the  said  last  men- 
tioned writ,  with  the  said  recited  return  thereon  endorsed,  and 
signed  by  him  as  the  plaintiff's  deputy,  to  the  said  court.  Yet 
the  plaintiff  avers  that  the  said  T.  in  his  lifetime,  or  since  his 
death  the  said  defendant,  did  not  pay,  and  hath  never  paid,  the 

said  sum  of so  as  aforesaid  by  the  said   T.  collected 

and  received,  by  virtue  of  the  said  last  mentioned  writ  of  fieri 


Declarations  in  debt.  469 

facias,  or  any  part  thereof,  to  the  said  United  States,  or  into  the 
treasury  thereof,  or  to  any  officer  thereof,  or  other  person  or 
persons  entitled  to  receive  the  san:ie,  but  wholly  failed  and  ne- 
glected so  to  do. 

Fifthly,  in  this,  &c.  (case  of  another  return  similar  to  that  men- 
tioned in  third  breach.) 

Nevertheless  the  said  T.  in  his  lifetime,  or  since  his  death, 
the  said  defendant  his  administrator,  hath  not  paid  to  the  plain- 
tiff" the  said  sum  of  40,000  dollars  above  demanded,  or  any 
part  thereof,  though  thereunto  often  requested,  but  the  same  to 
the  plaintiff"  to  pay  the  said  T.  in  his  lifetime,  and  the  defen- 
dant since  his  death,  always  refused,  and  the  said  defendant 

still  refuses,   to  the    plaintiff''s   damage   dollars,   and 

therefore  he  bringeth  suit  &c. 

*  In  Bennett's  ex' or  v.  Giles,  governor,  6  Leigh  316.  instead  of  its  being 
averred  that  the  deputy  sheriff  had  received  the  amount  of  the  execu- 
tion, the  averment  was  that  he  had  acknowledged  to  have  received  the 
same.     In  this,  the  declaration  was  defective. 

35.  On  an  indemnifying  bond  taken  by  a  sheriff  or  constable  under 
the  statute.  1  Rob.  Prac.  63,  4,  5,  6.  Lewis  v.  Adams  Sfc.  6 
Leigh  320.     Stevens  S^'c.  v.  Bransford  ^v.  6  Leigh  246. 

The  declaration  in  Carrington  v.  Anderson,  5  Munf.  32.  is  inserted 
at  length,  in  the  report  of  the  case ;  the  reporter  thinking  it  might  be 
useful  to  practitioners.  That  declaration  appears,  however,  to  be  very 
unskilfully  drawn ;  and  it  would  probably  have  been  adjudged  bad,  if  it 
had  been  demurred  to,  and  a  question  raised  as  to  its  sufficiency. 

The  following  precedent  is  taken  from  the  declaration  in  Stevens  S^c. 
v.  Bransford  Sfc.  6  Leigh  246.  which  appears  to  be  better  drawn  : 

S.  B.  sergeant  of  the  corporation  of  L.  (who  sues  for  the  be- 
nefit of  A.  M.  J.)  complains  of  J.  T.  S.,  D.  G.  H.  and  T.  A. 
H.  in  custody  &c.  of  a  plea  that  they  render  unto  him  the  sum 
of  $400,  which  to  him  they  owe  and  from  him  unjustly  detain, 
for  that  the  said  defendants,  on  the  6th  day  of  October  1823,  at 
the  corporation  aforesaid,  and  within  the  jurisdiction  of  the 
court  of  said  corporation,  by  their  certain  writing  obligatory, 
sealed  with  their  seals,  and  now  here  to  this  court  shewn,  the 
date  whereof  is  the  same  day  and  year  aforesaid,  acknow- 
ledged themselves  held  and  firmly  bound  unto  the  plaintiff",  in 
the  just  and  full  sum  of  $400,  to  the  payment  whereof,  well 
and  truly  to  be  made,  to  the  plaintiff",  his  executors,  administra- 
tors or  assigns,  they  bound  themselves,  their  heirs,  executors 
and  administrators,  jointly  and  severally,  firmly  by  said  writing 
obligatory,  with  a  condition  thereto  annexed,  and  underwritten, 
in  substance  and  to  the  effect  following,  that  is  to  say, — That 


470  Declaratio7is  in  debt, 

whereas  the  said  J.  T.  S.  had  sued  out  of  the  court  of  the  cor- 
poration of  L.  a  writ  o^  f.eri  facias  against  the  goods  and  chat- 
tels of  A^.  H.  upon  a  judgment  obtained  in  said  court,  which 
writ,  with  the  legal  costs  attending  the  same,  amounted  to  the 
sum  of  $  108.32  cts.  And  whereas  the  said  plaintiff^  as  ser- 
geant of  the  said  corporation  of  L.  as  aforesaid,  by  virtue  of 
the  said  writ,  to  him  directed,  had  levied  the  same  on  one  negro 
man  slave  named  Joe,  and,  a  doubt  having  arisen  whether  the 
right  of  the  said  property  was  in  the  said  N.  H.  or  not,  the  said 
plaintiff,  as  sergeant  as  aforesaid,  had  required  of  the  said  J.  T. 
S.  bond  with  good  security  to  indemnify  him  the  said  plaintiff, 
pursuant  to  the  act  of  assembly  in  such  cases  provided.  If 
therefore  the  said  defendants  should  indemnify  the  said  plaintiff 
against  all  damages  which  he  might  sustain,  in  consequence  of 
the  seizure  or  sale  of  the  property  on  which  the  said  execution 
had  been  levied,  and  moreover  should  pay  and  satisfy  to  any 
person  or  persons,  claiming  title  to  the  said  property,  all  da- 
mages which  such  person  or  persons  might  sustain,  in  conse- 
quence of  such  seizure  or  sale,  then  the  said  writing  obligatory 
to  be  void,  otherwise  to  remain  in  full  force.  And  the  plaintiff 
avers  that  the  said  slave  Joe  was  thereupon,  then  and  there,  to 
wit,  on  the  day  and  year,  and  at  the  place  last  mentioned,  by 
him,  as  sergeant  as  aforesaid,  in  virtue  of  the  execution  afore- 
said, sold  to  satisfy  the  same,  and  that  the  said  slave,  at  the 
time  of  the  seizure  and  sale  of  him  as  aforesaid,  under  the  exe- 
cution aforesaid,  was  the  lawful,  rightful,  hona  fide  and  absolute 
property  of  the  said  A.  M.  J.  and  not  the  property  of  the  said 
N.  H.  and  that  the  said  A.  M.  J.  by  the  seizure  and  sale  of  the 
said  slave  as  aforesaid  hath  sustained  great  damage  to  wit :  to 
the  value  of  S  400,  and  the  plaintif}',  protesting  that  the  said  de- 
fendants, or  any,  or  either  of  them,  have  not,  in  any  thing,  per- 
formed or  fulfilled  the  said  condition,  of  their  said  writing  obli- 
gatory, farther  avers  that  the  said  defendants,  nor  any,  or  either 
of  them,  (although  often  thereto  requested,)  have  not  kept, 'ful- 
filled or  performed  the  said  condition,  of  their  said  writing  obli- 
gatory, in  this,  to  wit,  that  they,  or  any,  or  either  of  them,  (al- 
though often  thereto  requested,)  have  not  paid  or  satisfied  the 
said  A.  M.  J.  the  damages  sustained  by  him  in  consequence  of 
the  seizure  and  sale  of  said  slave  aforesaid,  or  any  part  thereof, 
but  have  hitherto  wholly  refused,  and  still  do  neglect  and  re- 
fuse so  to  do.  By  means  whereof,  and  by  virtue  of  the  act  of 
assembly  in  such  cases  made  and  provided,  an  action  hath  ac- 
crued to  the  plaintiff  to  demand  and  have  of  the  said  defen- 
dants the  said  sum  of  $400.  Yet  the  said  defendants,  or  any, 
or  either  of  them,  (although  often  thereto  requested,)  the  said 
sum  of  $400  to  the  plaintiff  have  not  paid,  but  the  same  to  pay 


.Declarations  in  debt.  471 

have  hitherto  refused,  and  still  do  refuse,  to  the  damage  of  the 
plaintiff  $  400,  and  therefore  he  sues. 

36.   O71  a  cammon  law  bond  of  indemnity. 

If  a  bond  be  given  conditioned  that  the  obligor  shall  pay  all  costs  and 
damages  which  may  be  awarded  in  consequence  of  the  obligor's  deliver- 
ing to  him  a  negro  slave,  a  judgment  obtained  by  a  third  person  against 
the  obligor  is  sufficient  to  sustain  an  action  on  the  bond,  without  proof 
of  satisfaction  of  the  judgment.  Murrell  v.  Johnson's  adm'r,  1  H.  «Si/ 
M.  450. 

In  debt  on  a  bond,  conditioned  to  indemnify  obligee  against  the  claim 
of  a  third  person,  or  those  representing  him  in  case  of  his  death,  it  was 
assigned  as  a  breach  that  one  of  the  representatives  of  such  third  person, 
to  wit,  his  distributee  had  obtained  a  decree  against  the  obligee.  Upon 
demurrer  to  the  declaration,  it  was  objected  that  it  did  not  appear  that 
the  administrator,  or  other  legal  representative  of  the  third  person  afore- 
said, had  obtained  the  decree  or  was  a  party  to  the  suit.  The  court  of 
appeals  held  that  there  was  nothing  in  the  objection.  It  might  be  that 
the  proper  parties  were  not  before  the  court  of  chancery,  when  it  made 
the  decree  relied  on,  and  that  the  decree  was  erroneous  upon  this 
ground.  But  the  error  could  not  be  availed  of,  in  the  action  upon  the 
bond.     Lamb  v.  Harrison' s  adm'r  S^c.  2  Leigh  525. 

Where  a  bond  is  conditioned  to  indemnify  the  obligee  against  the 
claim  of  a  third  party,  and  a  decree  for  the  amount  of  such  claim  is  ren- 
dered against  the  executor  of  the  obligee,  and  satisfied  out  of  the  es- 
tate of  the  obligee,  an  administrator  de  bonis  non  of  the  obligee  may 
maintain  an  action  on  the  indemnifying  bond,  and  recover  the  amount 
paid  by  the  executor,  in  his  lifetime,  out  of  the  assets.  Lamb  v.  Harri- 
son's adm'r  Sfc.  2  Leigh  525. 

37.  On  a  bo2tnds  bond.  1  Rob.  Prac.  66  to  69.  Simms  ^'c.  v. 
Slacum,  3  C ranch  300.  Slacnm  v.  Simms  ^c.  5  Cranch  363. 
Ammidon  v.  S?nith  ^'c.  1  Wheat.  447. 

J.  S.  assignee  of  TV.  F.,  late  sheriff  of  H.  county,  complains 
of  T.  J.  and  B.  J.,  in  custody  &c.,  of  a  plea  that  they  render 
to  him  the  sum  of  $300,  which  to  him  they  owe,  and  from  him 
unjustly  detain  :  for  this,  that  the  said  defendants,  on  the  18th 
day  of  November,  in  the  year  1822,  at  the  county  aforesaid,  by 
their  certain  writing  obligatory,  sealed  with  their  seals,  and  to 
the  court  now  here  shewn,  the  date  whereof  is  the  same  day 
and  year  aforesaid,  acknowledged  themselves  to  be  held  and 
firmly  bound  unto  the  said  W.  F.  sheriff  as  aforesaid,  and  his 
successors  in  office,  in  the  just  and  full  sum  of  $300,  to  be  paid 
to  the  said  TV.  F.  sheriff"  as  aforesaid,  his  successors  in  of- 
fice, his  or  their  attorney,  executors,  administrators  or  assigns, 
and  for  the  payment  thereof,  did  bind  themselves,  their  heirs, 
executors  and  administrators,  jointly  and  severally,  firmly  by 


472  Declarations  in  debt. 

iheir  writing  obligatory  aforesaid,  to  which  said  writing  obliga- 
tory a  condition  to  the  following  effect  and  purport  was  and  is 
annexed  :  (here  insert  the  condition).  And  the  plaintiff  in  fact 
saith,*  that  the  said  T.  J.  did  not  keep  and  observe  the  rules 
or  bounds  of  the  prison,  as  laid  out  by  the  said  county  court  of 
//.  but  did,  after  the  making  and  execution  of  the  said  bond, 
and  before  the  expiration  of  one  year  from  the  date  thereof,  to 
wit,  on  the day  of in  the  year  ,  and  at  di- 
vers other  times,  at  the  county  aforesaid,  break  and  escape  from 
the  said  prison  rules  or  bounds,  and  go  out  of  the  same,  at  large, 
whithersoever  he  had  a  mind  to  go,  and  that  the  said  T.  J.  did 
not,  at  the  expiration  of  one  year  from  the  date  of  the  said  bond, 
render  his  body  to  prison,  in  satisfaction  of  the  execution  afore- 
said, but  hath  wholly  failed,  neglected  and  refused,  and  still 
fails,  neglects  and  refuses  so  to  do.  And  the  said  plaintiff  in 
fact  further  saith,  that  after  the  breaking,  escaping  from,  and 
going  out  of  the  prison  rules  or  bounds  aforesaid,  by  the  said 
T.  J.,  and  after  his  said  failure  and  refusal  to  render  his  body 
to  prison  in  discharge  of  the  execution  aforesaid, t  the  said  W. 

F.,  still  being  sheriff  as  aforesaid,  did,  on   the  day  of 

in  the  year ,  at  the  county  aforesaid,  (the  sum  of 

money  mentioned  in  the  condition  thereof  being  due  and  unpaid,) 
assign  the  said  bond  to  the  said  plaintiff;  of  which  said  assign- 
ment the  said  defendants  afterwards,  to  wit,  on  the  day  and  year 
last  mentioned,  at  the  county  aforesaid,  had  notice.  By  means 
of  all  which  premises,  and  by  virtue  of  the  act  of  the  general 
assembly  in  that  case  made  and  provided,  an  action  hath  ac- 
crued to  the  said  plaintiff,  as  assignee  aforesaid,  to  demand  and 
recover  of  the  said  defendants,  the  said  sum  of  $  300.  Yet  the 
said  defendants,  although  often  requested,  have  not,  nor  hath 
either  of  them,  paid  to  the  said  plaintiff  the  said  sum  of  $300, 
or  any  part  thereof,  but  the  same  to  him  to  pay,  have,  and  each 
of  them  hath  hitherto  refused,  and  they  do,  and  each  of  them 
doth,  still  refuse,  to  the  damage  of  the  plaintiff  of  $  300  ;  and 
herefore  he  brings  suit  &c. 

*  The  fact  of  the  escape  is  not  to  be  introduced  after  the  word  whereas, 
but  is  to  be  positively  alleged.     St/me  v.  Griffin,  4  H.  &  M.  277. 

In  Smith  and  others  v.  Jansen,  8  Johns.  111.  the  breach  suggested  was 
that  the  prisoner  did  not  remain  a  true  and  faithful  prisoner  according 
to  the  condition  of  the  bond,  but  that  he  escaped  without  being  dis- 
charged by  due  course  of  law.  This  suggestion  assigned  the  breach 
generally  by  negativing  the  words  of  the  condition,  and  was  considered 
sufficient. 

t  In  Meredith's  adm'r  v.  Duval,  1  Munf.  82.  the  declaration  stated  the 
escape  to  have  been  on  the  1st  of  September  1790,  and  the  assignment 
by  the  sheriif  as  of  the  1st  of  March  1790,  and  the  objection  was  made 


Declarations  in  debt.  473 

•  that  no  breach  appeared  to  have  taken  place  at  the  time  of  the  assign- 
ment. This  objection  was  overruled,  because  oyer  had  been  taken  of 
the  bond,  and  the  assignment  exhibited  thereon  appeared  to  be  long  pos- 
terior to  the  breach. 

38.   On  a  bond  given  upon  obtaining  an  ajrpcal  or  supersedeas. 
1  Rob.  Prac.  69.  70. 

In  an  action  upon  an  appeal  or  supersedeas  bond,  no  objection  can  be 
taken  for  want  of  technical  form  in  the  judgment  of  affirmance,  nor 
can  the  ground  be  taken  that  there  was  error  in  the  judgment  of  affirm- 
ance, which  was  amended  as  a  clerical  error  when  it  could  only  be  cor- 
rected with  propriety  by  an  appellate  court.  The  court,  before  which 
the  action  is  brought,  upon  the  appeal  or  supersedeas  bond,  must  consi- 
der those  proceedings  as  regular,  and  as  obligatory  on  the  parties,  untU 
they  are  reversed  by  proper  authority.     Miller  v.  M'Luer,  Gilm.  338. 

If  the  appeal  abate  by  the  appellant's  death,  and  there  is  no  revival 
thereof,  an  action  cannot  be  maintained  against  the  surety  in  the  appeal 
bond.     Nelson  v.  Anderson,  2  Call  286. 

39.   On  a  bond  given  upon  obtaining  an  injunction  to  a  judgment. 

Where  an  injunction  is  obtained  on  account  of  a  defect  of  title,  in 
land  sold  to  the  plaintiff  by  the  defendant,  and  that  injunction  is  dissol- 
ved upon  terms  that  the  defendant  shall  execute  a  bond,  for  securing  the 
title  to  the  land  in  question,  the  defendant,  after  giving  such  bond,  may 
maintain  an  action  on  the  injunction  bond,  with  as  much  effect  as  he 
could  have  done,  had  the  injunction  been  dissolved  unconditionally. 
Gray  Sf  Scott  v.  Campbell,  3  Munf  251. 

Although  the  condition  of  the  injunction  bond  does  not  in  terms  men- 
tion the  damages,  but  merely  provides  for  paying  the  judgment  at  law 
and  the  costs  of  the  injunction,  the  damages  may,  notwithstanding,  be 
recovered.     Fox  Sf  Vowles  v.  Mountjoy,  ex' or  of  Edtcards,  6  Munf.  36. 

If  an  injunction  be  awarded  to  a  judgment  at  law,  and  after  the  dis- 
solution of  that  injunction,  the  complainant  appeals  to  the  court  of  ap- 
peals, the  surety  in  the  bond  given  for  prosecuting  the  injunction,  will 
not  be  liable  for  the  costs  and  damages  which  may  accrue  on  the  appeal 
to  the  court  of  appeals.     Woodson  v,  Johns,  3  Munf  230. 

W.  D.  complains  of  /.  V.  and  T.  M.,  in  custody  &c.  of  a 
plea  that  they  the  said  V.  and  3/.  the  defendants,  render  to  him 
the  said  D.  the  plaintiff,  the  sum  of  $  2100,  which  to  bim  they 
owe,  and  from  him  unjustly  detain.     And  thereupon  the  said 

plaintiff  sailh,  that  heretofore,  to  wit,  on  the day  of , 

in  the  year ,  at  the  said  county  of ,  the  said  de- 
fendants by  their  certain  writing  obligatory  &c.  (set  it  forth)  to 
which  said  writing  obligatory  there  is  a  condition  to  the  follow- 
ing effect,  to  wit,  (here  recite  the  condition).  And  the  plaintiff 
in  fact  saith,  that  afterwards,  to  wit,  at  a  circuit  superior  court 
60 


474  Declarations  in  debt. 

of  law  and  chancery  for  the  said  county  of held  on  the 

■         day  of ,  the  said  circuit  superior  court  did  adjudge, 

order  and  decree,  that  the  injunction  aforesaid  be  dissolved,  and 

that  the  said pay  unto  the  said the  costs  by  the 

said  in  the  said  circuit  superior  court  expended.     And 

the  said  plaintiff  further  sailh,  that  the  said  costs  in  the  said 

circuit  superior  court  amount  to  $ ,  and  that  the  damages 

to  which  he  is  entitled,  at  the  rate  of  ten  per  centiim  per  annum, 
from  the  time  the  said  injunction  was  awarded  until  the  said 
dissolution,  on  such  sum  as  appears  to  be  due,  including  the 
costs  recovered  at  law,  amount  to  a  large  sum  of  money,  to  wit, 

the  sum  of  $ .     And  the  said  plaintiff'  avers,  that  although 

the  said  injunction  has  been  dissolved  as  aforesaid,  yet  the  said 
J.  V.  hath  not  paid  to  the  said  plaintiff"the  money  and  costs  due 
to  him  by  virtue  of  the  said  judgment,  nor  halh  he  paid  to  the 
said  plaintiff"  the  costs  awarded  against  the  said  J.  V.  by  the 
decree  of  the  said  circuit  superior  court,  nor  hath  he  paid  to  the 
said  plaintiff?'  the  damages  aforesaid,  but  to  pay  the  said  money, 
costs  and  damages,  and  every  part  thereof,  the  said  J.  V.  hath 
hitherto  wholly  neglected  and  refused.  By  reason  whereof  the 
said  writing  obligatory  hath  become  forfeited,  and  action  hath 
accrued  to  the  said  plaintiflf  to  demand  and  have  of  and  from 
the  said  defendants  the  said  sum  of  $2100  above  demanded. 
Yet  &c.  (as  in  No.  37.) 

40.   0?i  a  bond  given  upon  obtaining  an  injunction  to  a  sale  under 

execution. 

The  president,  directors  and  company  of  the  bank  of  the 
United  States  and  J^^  B.  D.  complain  of  R.  B.  P.  and  D.  P., 
being  in  custody  &c.  of  a  plea  that  they  render  to  the  plaintiffs 
the  just  and  full  sum  of  $20,481,  lawful  money  of  the  U?ii- 
ted  States,  which  to  the  said  plaintiffs  they  owe,  and  from 
the  said  plaintiffs  unjustly  detain.  And  thereupon  the  ^aid 
plaintiffs  say,  that  heretofore,  to  wit,  on  the  15th  day  of  February 
in  the  year  1838,  at  the  Said  county  of  H.  the  said  R.  B.  P. 
and  D.  P.  by  their  certain  writing  obligatory,  sealed  with  their 
seals,  the  date  whereof  is  the  day  and  year  last  aforesaid,  ac- 
knowledged &c.  (here  the  obligation  was  set  forth.)  Which 
said  writing  obligatory  was  and  is  subject  to  a  certain  condition 
thereunder  written,  whereby,  after  reciting  to  the  effect  follow- 
ing, to  wit,  that  &c.  (here  were  set  forth  all  the  recitals  in  the 
condition),  it  was  expressed,  declared  and  provided  to  the  effect 
following,  to  wit,  that  if  the  said  R.  B.  P.  should  hold  the  said 
slaves,  or  their  value,  and  upon  a  dissolution  of  the  said  injunc- 
tion (should  it  be  dissolved),  should  produce  and  surrender  the 


Declaratio7is  in  debt.  475 

same,  in  court,  in  satisfaction  of  said  executions,  and  further- 
more should  abide,  perform  and  fulfil  the  decree,  or  decrees, 
of  the  said  court,  which  might  be  made  in  the  said  cause,  then 
the  said  obligation  was  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue,  all  which  will  appear  by  a  duly  certified  copy 
of  the  said  writing  obligatory,  and  of  the  condition  thereunder 
written,  now  here  to  the  court  shewn,  the  original  thereof  re- 
maining filed  with  the  clerk  of  the  said  circuit  court  of  the  Uni- 
ted States  for  the  fifth  circuit  and  eastern  district  of  Virginia. 
And  the  said  plaintiffs  further  say,  that  when  the  said  R.B.  P. 
had  executed  and  filed  with  the  clerk  of  the  said  circuit  court 
of  the  United  States,  bond  with  security  as  aforesaid,  the  said 
injunction  order  took  effect,  and  the  said  R.  B.  P.  thereupon,  to 
wit,  on  the  said  15th  day  of  February  1838,  at  the  count}^  afore- 
said, received  the  said  slaves.  And  the  said  plaintiffs  further 
say  that  afterwards,  to  wir,  at  a  court  of  the  United  States  held 
for  the  fifth  circuit  and  eastern  district  of  Virginia,  on  the  thirty- 
first  day  of  May  1839,  the  said  cause,  in  which  the  said  R.  B. 
P.  was  plaintiff,  and  the  said  president,  directors  and  company 
of  the  bank  of  the  United  States  and  J'^  B.  D.  were  defendants, 
by  consent  as  well  of  the  plaintiff'  as  of  the  said  defendants, 
came  on  to  be  heard  upon  the  bill  of  the  complainant,  the  answer 
of  the  defendant  F.  B.  D.  the  examinations  of  witnesses  and 
the  exhibits  filed,  and  was  argued  by  counsel.  On  considera- 
tion whereof",  the  court  did  adjudge,  order  and  decree,  that  the 
injunction  awarded  the  plaintiff  in  the  said  cause,  to  injoin  the 
defendants  therein  from  selling,  under  the  executions  in  the  bill 
mentioned,  the  slaves  in  the  said  bill  also  mentioned,  should  be 
dissolved,  and  that  the  bill  of  the  plaintiff  in  the  said  cause  should 
be  dismissed,  but  without  costs  to  either  part}',  as  by  the  record 
and  proceedings  now  remaining  in  the  said  circuit  court  of  the 
United  States  for  the  fifth  circuit  and  eastern  district  of  Virginia, 
manifestly  appears,  a  transcript  whereof,  duly  certified,  is  now 
here  to  the  court  shewn.  And  the  plaintiffs  in  this  action  in 
fact  say,  that  the  said  R.  B.  P.  did  not  hold  the  said  slaves,  and 
did  not,  upon  the  dissolution  of  the  said  injunction,  produce  and 
surrender  the  said  slaves,  or  their  value,  in  court,  in  satisfaction 
of  said  executions,  according  to  the  form  and  effect  of  the  said 
condition,  of  the  said  writing  obligatory,  but  to  produce  and  sur- 
render the  said  slaves,  or  their  value,  in  court,  in  satisfaction  of 
said  executions,  has  hitherto  wholly  neglected  and  refused,  and 
still  neglects  and  refuses  to  do  so.  By  reason  whereof  the  said 
writing  obligatory  became  forfeited,  and  thereby  an  action  has 
accrued  to  the  plaintiffs  in  this  action  to  demand  and  have  of 
and  from  the  said  R.  B.  P.  and  D.  P.  the  said  sum  of  $  20,481 
above  demanded.     Yet  the  said  R.  B.  P.  and  D.  P.  although 


476  Declarations  in  debt. 

ofterl  requested  so  to  do,  have  not,  nor  has  either  of  them,  as 
yet,  paid  to  the  plaintiffs  in  this  action,  or  either  of  them,  the 
said  sura  of  $20,481,  or  any  part  thereof,  but  to  pay  the  same, 
or  any  part  thereof,  to  the  plaintiffs  in  this  action,  or  either  of 
them,  they  have,  and  each  of  them  hath,  hitherto,  wholly  ne- 
glected and  refused,  and  they  do,  and  each  of  them  doth,  still 
neglect  and  refuse,  to  the  damage  of  the  said  plaintiffs  in  this 
action  $  20,000  ;  and  therefore  they  bring  suit  &c. 

41.  On  a  bond  given  upon  obtaining  an  attachment  against  the  effects 

of  an  absconding  debtor. 

In  an  action  upon  an  attachment  bond,  conditioned  that  the  defen- 
dant shall  pay  all  costs  and  damages  that  may  accrue  from  wrongfully 
suing  out  the  attachment,  the  declaration  is  bad,  on  general  demurrer, 
if  it  merely  avers  that  the  defendant  "  did  not  pay  all  such  costs  and 
damages  as  have  accrued,"  without  alleging  that  the  attachment  was 
wrongfully  sued  out,  or  that  any  costs  and  damages  had  been  sustained. 
The  mere  allegation  that  the  defendant  had  Tailed  to  pay  the  costs  and 
damages  that  had  accrued,  is  not  a  sufficient  foundation  for  inferring 
that  costs  and  damages  had  been  actually  sustained.  A  direct  averment 
is  essential.  Dickinson,  adm'r  S^c.  v.  M'Craw,  4  Rand.  158,  But 
where  damages  have  been  sustained,  it  is  not  necessary  that  they  should 
be  previously  assessed  in  some  other  action,  to  justify  an  action  on  the 
bond.     Ibid. 

42.  By  an  heir  on  a  bond  to  his  ancestor  conditioned  for  the  quiet  en- 
joyment of  lands,  assigning  a  breach  since  the  ancestor'' s  death. 

In  shewing  in  the  declaration  Tiow  a  party  is  heir,  there  is  a  difference 
between  an  action  by  and  against  an  heir.  In  the- former  case,  he  must 
shew  his  pedigree  and  how  heir,  for  it  lies  in  his  proper  knowledge,  but 
in  the  latter  he  need  not,  for  the  plaintiff  is  a  stranger  and  it  would  be 
hard  to  compel  him  to  set  forth  another's  pedigree.  See  Denham  v. 
Stephenson,  1  Salk.  355.    2  Wms.  Saund.  7e. 

In  an  action  of  covenant  by  an  heir  for  breach  of  covenants  contained 
in  a  conveyance  of  lands  to  the  ancestor,  the  declaration  averring  that 
the  "  lands,  covenants  and  writings  aforesaid  have  descended  to  the 
plaintiff,"  it  was  objected  after  verdict  that  there  was  no  sufficient  aver- 
ment that  the  plaintiff  was  heir  at  law,  but  the  objection  was  overruled. 
Woodford's  heir  v.  Pendleton,  1  H.  &  M.  303. 

The  following  precedent  is  copied  from  the  declaration  in  Eppes's 
heir  v.  Eppes's  adm'r,  2  Call  22.  in  which  case  the  action  of  the  heir 
was  maintained : 

P.  E.  eldest  son,  and  heir  at  law,  and  devisee  of  P.  E.  de- 
ceased, complains  of  S.  D.  administrator  of  all  and  singular 
the  goods  and  chattels,  rights  and  credits  of  T.  E.  deceased,  in 
custody  &c.  of  a  plea  of  debt,  that  he  render  to  him  the  sum  of 


Declarations  in  debt.  477 

£  600.  sterling,  which  from  him  he  unjustly  detains,  for  this,  to 
wit,  that  whereas  the  said  T.  E.  in  his  lifetime,  to  wit,  on  the 
first  day  of  July,  in  the  j^ear  1761,  at  the  county  aforesaid,  by 
his  certain  writing  obligatory,  sealed  with  his  seal  and  to  the 
court  now  here  shewn,  the  date  whereof  is  the  same  day  and 
year  aforesaid,  acknowledged  himself,  his  heirs,  executors  and 
administrators,  to  be  held  and  firmly  bound  unto  the  said  P.  E. 
deceased,  and  to  his  heirs,  executors  and  administrators,  in  the 
aforesaid  sum  of  .£  600.  sterling,  to  be  paid  when  he  the  said  T. 
or  his  heirs,  executors  or  administrators,  should  be  thereunto 
required,  with  a  condition  annexed  to  the  said  writing  obligato- 
ry, in  the  words  following,  to  wit :  "  The  condition  of  this  obli- 
gation is  such,  that  if  the  above  named  T.  E.  his  heirs  and  as- 
signs, and  every  of  them,  shall  or  may  peaceably  and  quietly 
have,  hold,  occupy  and  enjoy  the  river  plantation,  devised  to 
the  said  P.  by  his  father  i.  E.  deceased,  with  the  appurtenances, 
and  all  ways,  and  woods,  and  waters  thereunto  belonging  or 
appertaining,  without  the  let,  trouble,  suit,  eviction,  disturbance 
or  contradiction  of  the  within  bound  T.  E.  his  heirs,  executors, 
administrators  or  assigns,  or  any  other  person  or  persons  what- 
soever, having,  claiming  or  pretending  any  right,  title,  interest 
or  property  of,  in  or  to  the  said  plantation  or  tract  of  land,  or 
any  part  thereof,  by,  from  or  under  the  said  T.  E.  or  his  heirs 
or  assigns,  according  to  the  tenour,  effect  and  true  meaning  of  the 
last  will  of  the  said  L.  E.,  then  this  obligation  is  to  be  void,  and 
of  none  effect."  And  the  said  P.  E.  the  plaintiff,  doth  aver, 
that  the  said  S.  D.  in  right  of  E.  T.  his  wife,  who  is  grand- 
daughter of  the  aforesaid  T.  E.  deceased,  and  heir  at  law  of  the 
same,  actually  instituted  a  suit  in  the  county  court  of  Charles 
City  for  the  aforesaid  lands  against  the  plaintiff,  and  actually  re- 
covered the  same  by  verdict  and  judgment,  (which  upon  an  ap- 
peal has  been  affirmed,)  and  sued  out  execution  thereon,  and 
was  thereby  put  into  possession  of  the  same  lands,  and  is  actu- 
tually  in  possession  thereof  at  this  time,  so  that  the  said  P.  E. 
the  plaintiff,  as  son  and  heir  at  law,  and  devisee  of  the  said  P. 
£.  deceased,  is  disturbed  in  and  evicted  out  of  the  quiet  posses- 
sion and  enjoyment  of  the  aforesaid  lands  :  whereby  the  condi- 
tions aforesaid  are  wholly  broken,  and  the  aforesaid  obligation 
has  thereby  become  and  remains  in  full  force  and  virtue ;  and 
hence  an  action  accrues  to  the  plaintiff,  to  have  and  demand  of 
the  defendant,  the  aforesaid  sum  of  £  600.  sterling.  Neverthe- 
less, the  said  T.  E.  in  his  lifetime,  nor  the  said  S.  since  the 
death  of  the  said  T.  the  said  sum  of  £  600.  sterling,  or  any  part 
thereof,  to  the  said  P.  E.  in  his  lifetime,  or  to  the  plaintiff  since 
his  death,  hath  not  paid,  but  the  same  to  him  to  pay,  they  have 
refused,  and  the  said  S.  D.  still  doth  refuse,  to  the  damage  of 
the  plaintiff,  £  1000.  and  therefore  he  brings  suit  &c. 


47  S  Declarations  in  debt. 

43.   On  the  hovd  of  an  o^ccr  of  a  banking  comjyany,  or  other  corpo- 
ration^  conditioned  to  peiform  the  duties  of  his  ojice. 

In  the  case  of  Albany  Dutch  church  v.  Vedder  and  others,  14  Wend. 
165.  the  action  was  on  the  bond  of  Gurit  Gates  as  treasurer  of  the 
Reformed  Protestant  Dutch  church  in  the  city  of  Albany,  and  it  was  a 
part  of  the  condition  that  he  should  "  keep  a  separate  account  in  the 
bank  of  Albany,  as  such  treasurer,  of  all  moneys  received  by  him  on 
account  of  said  church."  The  assignment  was  "  that  the  said  Gurit 
Gates  did  not  keep  a  separate  account  in  the  bank  of  Albany,  as  such 
treasurer,  of  all  moneys  received  by  him  on  account  of  said  church," 
but  large  sums  of  money,  amounting  to  the  sum  of  $  10,000,  received 
by  him  as  treasurer,  were  never  deposited"  &c.  To  this  assignment 
there  was  a  demurrer,  but  it  was  held  good.  Savage,  C.  J.  who  deli- 
vered the  opinion  of  the  court,  said,  "  The  plaintiffs  do  not  shew  that 
they  have  been  damnified,  nor  do  they  furnish  any  data  by  which  their 
damages  may  be  assessed.  Upon  the  assessment  it  may  appear  that  al- 
though Gurit  Gates  did  not  keep  a  separate  account  in  the  bank  of 
Albany,  he  had  made  his  deposites  in  some  other  equally  safe  bank ;  in 
which  case,  only  nominal  damages  could  be  recovered  upon  the  assign- 
ment. I  am  inclined  however  to  think  upon  authority  that  the  assign- 
ment is  sufficient,  although  the  plaintiffs  would  be  entitled  to  recover 
only  nominal  damages.  It  seems  to  be  well  settled  that  it  was  not  ne- 
cessary to  set  forth  the  several  sums  of  money  received  by  Chirit  Gates, 
as  such  particularity  would  lead  to  too  great  prolixity." 

In  Allison  v.  The  Bank,  6  Rand.  204.  the  declaration,  after  negativ- 
ing the  performance  of  the  condition  in  the  words  thereof,  proceeded  to 
assign  five  several  breaches,  and  there  was  a  demurrer  upon  the  ground 
that  the  assignment  was  too  general.  It  will  suffice  to  state  one  breach 
to  shew  the  nature  of  the  objection.  The  third  breach  charged  the 
principal  obligor  with  permitting  fraudulently,  and  by  the  fraudulent 
keeping  of  the  books,  divers  persons  to  over-check,  and  thereby  obtain 
divers  large  sums  of  money  from  the  bank  to  which"  they  were  not  enti- 
tled, and  it  was  assigned  for  cause  of  demurrer  that  there  was  a  failure 
to  state  time  or  place,  names  or  sums  of  money.  The  court  of  appeals  was 
of  opinion  that  it  would  have  been  more  formal  to  have  stated  some  tiine 
when  the  acts  were  done,  but  as  the  breach  was  assigned  to  have  been 
committed  by  the  officer,  whilst  in  office,  it  was  considered  sufficient. 
The.  place  was  deemed  immaterial ;  and  it  was  not  considered  incumbent 
on  the  plaintiffs  to  specify  the  names  of  all  the  persons  from  whom  the 
money  was  received.  In  regard  to  the  sums  of  money,  it  would  clearly 
have  been  sufficient  after  the  words  "  divers  large  sums  of  money"  for 
the  declaration  to  have  gone  on  to  state,  "  amounting  to  the  sum  of 
$  10,000,"  or  any  other  gross  sum,  and  as  the  plaintiffs  would  not  have 
been  required  to  prove  such  sum,  the  omission  to  state  it  altogether  was 
regarded  as  of  no  importance.  In  this  case,  a  strong  disposition  was 
shewn  by  the  court  to  get  over  objections  on  account  of  the  omission  of 
matters  not  necessary  to  be  stated  for  any  of  the  purposes  of  justice. 


Declaratiojis  in  debt.  479 

44.   On  a  bond  to  transfer  back,  when  required,  bank  stock,  and  pay 
such  dividends  as  might  be  declared  thereon  in  the  mean  time. 

TV.  H.  P.  complains  of  J.  TV.  being  in  custody  &c.  of  a  plea 
that  he  render  to  the  said  plaintiff  the  sum  of  S  32,000,  which 
the  said  J.  TV.  owes  to  the  said  plaintiff,  and  unjustly  detains 
from  him.  And  thereupon  the  said  plaintiff  saith,  that  hereto- 
fore, and  in  the  lifetime  of  one  G.  TV.  who  is  since  deceased,  to 
wit,  on  the  12th  day  of  December  1817,  at  the  said  county  of 
H.  the  said  J.  TV.  and  the  said  G.  TV.  by  their  certain  writing 
obligatory,  sealed  with  their  seals,  and  to  the  court  now  here 
shewn,  the  date  whereof  is  the  day  and  year  aforesaid,  acknow- 
ledged themselves  to  be  held  and  firmly  bound  unto  the  said 
plaintiff  in  the  sum  of  $  16,000,  for  the  payment  of  which,  well 
and  truly  to  be  made,  they  bound  themselves,  and  each  of  their 
heirs,  executors  and  administrators,  in  the  penal  sum  of  $  32,000, 
which  said  writing  obligatory  was,  and  is,  subject  to  a  certain 
condition  thereunder  written,  whereby,  after  reciting  to  the  ef- 
fect following,  to  wit,  that  the  said  plaintiff  had,  on  the  said  12th 
day  of  December  1817,  delivered  over  scrip  for  stock  in  the 
bank  of  the  United  States,  (meaning  a  certain  bank  incorporated 
by  the  name  and  style  of  the  president,  directors  and  company 
of  the  bank  of  the  United  States,)  amounting  to  $  10,000,  to  the 
said  J.  TV.  with  full  power  and  authority  to  lake  out  certificates 
for  the  same,  in  his  own  name,  it  was  provided  that  if  the  said 
J.  TV.  should,  well  and  truly,  pay  over  to  the  said  plaintiff,  his 
heirs,  executors  or  assigns,  all  dividends  arising  on,  and  from, 
the  said  stock,  as  the  same  should  be  declared  by  the  president 
and  directors  of  the  bank  of  the  United  States,  (meaning  the 
president  and  directors  of  the  bank  incorporated  by  the  name 
and  style  of  the  president,  directors  and  company  of  the  bank 
of  the  United  States,)  and  transfer  the  said  stock  to  the  said  plain- 
tiff, his  heirs  and  assigns,  when  required  thereto,  then,  and  in 
that  case,  the  said  obligation  should  be  null  and  void. 

And  the  said  plaintiff  in  fact  saith,  that  the  said  J.  TV.  hath  not 
paid  over,  to  the  said  plaintiff,  all  dividends  arising  on,  and  from, 
the  said  stock,  as  the  same  have  been  declared  by  the  said  presi- 
dent and  directors  of  the  said  bank  ;  but,  on  the  contrary  thereof, 
the  said  plaintiff  saith,  that,  although  after  the  making  of  the 
said  writing  obligatory,  to  wit,  on  the  twenty-eighth  day  of  July 
1828,  at  the  county  of  H.  aforesaid,  certain  dividends  to  a  large 
amount,  to  wit,  the  sum  of  $  4925  had  arisen  on,  and  from,  the 
said  stock,  and  been  declared  by  the  president  and  directors  of 
the  said  bank,  and  although  he  the  said  J.  TV.  afterwards,  to 
wit,  on  the  day  and  year  last  aforesaid,  at  the  county  aforesaid, 
had  notice  thereof,  and  was  duly  required  to  pay  over,  to  the 


480  Declarations  in  debt. 

said  plaintiff,  the  said  last  mentioned  sum  of  money,  yet  the 
said  J.  W.  hath  not,  as  yet,  paid  over,  to  the  said  plaintiff,  the 
said  last  mentioned  sum  of  money,  or  any  part  thereof,  but  to 
pay  the  said  plaintiff  the  same,  hath,  hitherto,  wholly  neglected 
and  refused,  and  still  neglects  and  refuses  so  to  do,  to  wit,  at 
the  county  of  H.  aforesaid. 

And  for  assigning  a  further  breach  of  the  said  condition,  of 
the  said  writing  obligatory,  according  to  the  form  of  the  statute, 
in  such  case  made  and  provided,  the  said  plaintiff  in  fact  saith 
that  the  said  J.  W.  hath  not  transferred  the  said  stock  to  the 
said  plaintiff  when  required  thereto ;  but,  on  the  contrary 
thereof,  the  said  plaintiff  saith  that  after  the  making  of  the  said 
writing  obligator}'-,  to  wit,  on  the  twenty -eighth  day  of  July 
1828,  at  the  county  of  H.  aforesaid,  the  said  J.  W.  was  duly 
required  to  transfer  the  stock  aforesaid,  to  the  said  plaintiff,  but 
the  said  J.  TV.  did  not  then,  nor  at  any  time  before  or  since, 
transfer  to  the  said  plaintiff,  the  said  stock,  or  any  part  thereof, 
but  to  transfer  the  same,  to  the  said  plaintiff,  he  the  said  J.  W. 
hath,  hitherto,  wholly  neglected  and  refused,  and  still  neglects 
and  refuses  so  to  do,  to  wit,  at  the  county  of  H.  aforesaid. 

And  the  plaintiff  avers  that  neither  the  said  J.  W.  nor  the 
said  G.  TV.  deceased,  in  his  lifetime,  nor  any  person  since  the 
death  of  the  said  G.  TV.  acting  as  the  representative  of  the  said 
G.  TV.  or  in  any  other  character  or  behalf,  hath  paid,  to  the  said 
plaintiff,  the  said  sum  of  $16,000,  wherein  the  said  J.  and  G. 
TV.  by  the  said  writing  obligatory,  acknowledged  themselves  to 
be  bound  to  the  said  plaintiff,  but  to  pay  the  same,  they  have, 
and  each  of  them  hath,  wholly  failed  and  made  default ;  and 
by  reason  of  the  said  breaches  of  the  condition,  of  the  said 
writing  obligatory,  and  of  the  said  failure  and  default,  in  pay- 
ing the  said  sum  of  $  16,000,  the  said  writing  obligatory,  and 
the  aforesaid  penal  sum  of  $  32,000,  became  forfeited  ;  and  the 
said  G.  TV.  having  departed  this  life,  and  the  said  J.  TV.  having 
survived  him,  action  hath  accrued  to  the  said  plaintiff,  to  de- 
mand and  have  of  and  from  the  said  J.  TV.  the  said  sum  of 
$32,000,  above  demanded. 

Nevertheless,  the  said  J.  TV.  and  the  said  G.  TV.  deceased,  in 
his  lifetime,  (although  thereunto  often  requested,)  have  not,  nor 
hath  either  of  them,  as  yet,  paid,  to  the  said  plaintiff,  the  said 
sum  of  $  32,000,  above  demanded,  or  any  part  thereof,  nor  hath 
the  same,  or  any  part  thereof,  been  paid,  to  the  said  plaintiff, 
since  the  death  of  the  said  G.  TV.  by  any  person  as  the  repre- 
sentative of  the  said  G.  TV.  or  in  any  other  character  or  behalf, 
but  to  pay  the  same,  or  any  part  thereof,  the  said  J.  TV.  and  the 
said  G.  TV.  deceased,  in  his  lifetime,  and  the  representative  of 
the  said  G.  TV.  since  his  death,  and  every  other  person,  have 


Declarations  in  debt,  481 

hitherto  wholly  neglected  and  refused,  and  the  said  J.  W.  still 
neglects  and  refuses,  to  the  damage  of  the  said  plaintiff  $  32,000, 
and  therefore  he  brings  suit  &c. 

45.  Against  an  olfficer  conducting  an  election,  under  the  statute  crea- 
ting a  penalty  for  shewhig  'partiality.  Sess.  acts  1830-31.  p. 
29.  eh.  1.  <^  33.     Sup.  to  Rev.  Code,  p.  112. 

In  Sims  v.  Alderson,  8  Leigh  479.  it  was  contended  that  the  action 
of  debt  could  not  be  maintained ;  the  statute  providing  for  a  recovery  by 
bill,  plaint  or  information.  But  the  court  of  appeals  overruled  the  ob- 
jection, considering  debt  to  be  comprehended  in  the  word  bill. 

In  the  same  case  the  first  count  of  the  declaration  was  held  good 
upon  general  demurrer.  The  plaintiff  after  shewing  that  his  suit  was 
qui-tam,  and  after  demanding  the  precise  penalty  imposed  by  the  statute, 
set  forth  that  at  the  August  elections  for  Fayette  in  1831,  he  was  a  can- 
didate for  the  house  of  delegates,  and  that  the  defendant,  being  sheriff 
and  conductor  of  the  election,  did  interfere  and  shew  partiality,  in  fa- 
vour of  other  candidates,  and  against  him  "  by  advising  and  urging  per- 
sons to  vote  against  him,  and  by  refusing  to  receive  votes  of  persons 
known  to  be  favourable  to  him,  though  duly  qualified,  and  urging  their 
right  to  be  heard  in  the  said  election,  and  to  have  their  votes  received 
and  recorded  in  his  favour."  Nothing  was  considered  to  be  omitted  in 
this  declaration  so  essential  to  the  action  as  that  judgment  could  not  be 
given  according  to  law  and  the  very  right  of  the  case. 

46.  Upon  the  statute  creating  a  penalty  for  receiving  more  than  law- 
ful interest.     1  R.  C.  1819,  p.  374.  ^  2.  taken  from  12  Ann. 

Stat.  2.  ch.  16. 

Fox  V.  Keeling,  2  Ad.  <fe  Ellis  670.  29  Eng.  Com.  Law  Rep.  173. 
was  an  action  of  debt  for  penalties  under  12  Ann.  stat.  2.  ch.  16.  At 
the  trial  evidence  was  given  in  support  of  the  counts,  but  the  witnesses 
were  unable  to  state,  in  any  instance,  the  day  on  which  the  usurious 
contract  took  place.  For  the  defendants  it  was  contended  that,  to  sup- 
port the  action,  the  precise  day  of  the  usurious  contract  must  be  proved. 
A  verdict  being  taken  for  the  plaintiff,  a  rule  nisi  was  aftecwards  ol)- 
tained  from  the  court  of  King's  bench  for  entering  a  nonsuit.  Lord 
Denman,  C.  J.  said,  "  It  is  clear  from  the  authorities  that  time  is  of  the 
essence  of  all  usurious  bargains,  and  that  in  a  declaration  alleging  such 
a  bargain,  the  date  of  the  usurious  contract  must  be  stated,  and  must 
be  proved  as  laid,  even  though  under  a  videlicet.  A  different  day  can- 
not be  proved,  and  some  day  must  be  stated  and  proved.  In  this  case, 
though  it  is  demonstrable  that  usury  was  committed,  no  day  was  shewn 
in  evidence  upon  which  the  contract  took  place ;  nothing  was  laid  be- 
fore the  jury  which  could  enable  them  to  say  that  the  precise  offence 
laid  in  the  declaration  was  proved.  We  cannot  contend  with  the  de- 
cided cases.  The  rule  must  be  absolute."  Littledale,  Williams  and 
Coleridge,  judges,  concurred. 
61 


482  Declarations  in  covenant. 

II.    IN    COVENANT. 

Obligation  of  covenantor  construed  according  to  its  intent 
AND  meaning. — In  Lockridge  v.  Carlisle,  6  Rand.  20.  the  covenant 
stated  that  the  covenantor  had  received  of  the  covenantee,  notes  on  men 
in  Virginia  for  collection  to  a  specified  amount,  and  he  would  be  bound 
to  the  covenantee  for  the  amount.  The  court  of  appeals  decided  that 
the  covenant  was  not  to  pay  at  all  events,  but  that  the  covenantor  would 
use  reasonable  diligence  in  collecting  the  debts,  and  would  pay  the 
amount  collected  upon  request. 

But  whatever  obligation  really  is,  must  be  performed. — Upon 
the  principles  of  the  common  law,  any  one  undertaking  to  do  an  act,  or 
cause  it  to  be  done,  is  bound  to  do  it,  or  cause  it  to  be  done,  at  his 
peril,  and  to  find  the  means  of  doing  it,  unless  it  cannot  possibly  be  done 
without  the  active  concurrence  of  the  party  with  whom  the  contract  is 
made.     Green,  J.  in  Fairfax  v.  Lewis,  2  Rand.  35. 

In  England,  it  seems  to  be  doubtful,  whether  in  case  of  a  contract  to 
convey,  it  is  not  necessary  that  the  purchaser  should  prepare  the  convey- 
ance and  tender  it  for  execution,  whether  the  contract  provides  that  it 
shall  be  made  at  his  expense  or  not.  But,  if  it  be  necessary,  it  is  an 
exception  to  the  general  rule  of  law,  and  founded  upon  the  practice  of 
the  profession  in  that  country  as  to  conveyancing.  No  such  practice 
prevails  here.  Green,  J.  in  Fairfax  v.  Lewis,  2  Rand.  35,  Tinney  v, 
Ashley  Sfc.  15  Pick.  546. 

In  Fairfax  v.  Lewis,  the  defendant  covenanted  that  he  would  cause  a 
tract  of  land  to  be  conveyed  by  a  third  person  to  the  plaintiff.  Breach 
of  this  covenant  was  assigned  and  the  defendant  pleaded  that  he  had 
always  been  ready  to  cause  the  land  to  be  conveyed,  if  he  had  been  re- 
quired, but  the  plaintiff  never  demanded  a  conveyance.  To  this  plea 
the  plaintiff  demurred,  and  his  demurrer  was  sustained  by  the  superior 
court  of  law.     The  court  of  appeals  affirmed  the  judgment. 

Of  obligations,  where  the  covenants  are  dependent. — Where 
a  contract  is  entire,  and  the  covenants  are  dependent,  the  plaintiff  is,  in 
general,  obliged  to  aver  and  prove  a  complete  performance  of  all  that 
was  to  be  done  and  performed  on  his  part,  before  he  is  entitled  to  de- 
mand payment  from  the  other  party.  Tucker,  P.  in  Clark  v.  Franklin, 
7  Leigh  7.    Opn.  of  court  in  Love  v.  Ross,  4  Call  604. 

Thus  where  the  covenant  of  the  vendor  to  convey  is  a  condition  pre- 
cedent to  the  obligation  of  the  purchaser  to  pay  the  purchase  money, 
there  must,  in  every  such  case,  be  a  conveyance  or  a  tender  to  convey, 
and  the  vendor  can  maintain  no  action  for  the  purchase  money  without 
alleging  such  conveyance  or  tender.  Brockenbrough  v.  Ward's  adrn'r, 
4  Rand.  354.     Bank  of  Columbia  v.  Hagner,  1  Peters  455. 

In  Green  v.  Reynolds,  2  Johns.  207.  by  the  articles  entered  into,  the 
plaintiff,  for  the  consideration  thereinafter  mentioned,  covenanted  to 
execute  and  deliver  to  the  defendant  a  good  and  sufficient  deed  for  84 
acres  of  land,  on  the  first  day  of  May  1806,  and  the  defendant  cove- 
nanted to  pay,  to  the  plaintiff,  1000  dollars,  on  the  first  day  of  May 
1806,  and  a  farther  sum  on  a  subsequent  day,  which  was  specified.  The 
action  being  for  the  non-payment  of  the  1000  dollars,  on  the  first  of 
May  1806,  and  the  declaration  not  averring  that  the  plaintiff  had  ten- 


Declarations  in  covenant.  4S3 

dered  a  deed  on  that  day,  the  defendant  demurred,  and  judgment  was 
given  in  his  favour. 

In  Johnson  v.  Wygant,  11  Wend.  48.  the  defendant  covenanted  to 
pay  the  plaintiff  for  the  land  §  loo  in  three  equal  annual  payments,  with 
interest  annually  on  the  whole  sum  until  paid,  "  and  upon  the  payment 
thereof,  (the  covenant  proceeded,)  I  am  to  receive  from  the  said  John- 
son a  good  warrantee  deed  of  said  land."  The  consideration  money, 
though  payable  by  instalments,  was  all  due  before  the  bringing  of  the 
action,  and  the  breach  assigned,  in  all  the  counts,  was  the  non-payment 
of  the  whole  consideration  money,  and  not  of  the  first  or  second  instal- 
ment. But  there  was  no  allegation  that  a  deed  had  been  made  or  ten- 
dered, and  the  declaration  being  demurred  to,  judgment  was  given  for 
the  defendant  on  the  demurrer.  Sutherland,  J.  who  delivered  the  opinion 
of  the  court,  said,  "  The  payment  of  the  last  instalment,  or  the  whole 
consideration  money,  and  the  giving  of  the  deed,  were  to  be  concurrent 
acts.  Upon  the  payment  of  the  money,  the  deed  was  to  be  given.  It 
is  well  settled  that  covenants  like  these  are  dependent,  and  that  neither 
party  can  recover  against  the  other,  without  averring  a  tender  of  per- 
formance on  his  part.  A  mere  readiness  to  perform  is  not  sufficient.  If 
the  vendor  sues  for  the  consideration  money,  he  must  aver  a  tender  of 
such  a  deed  as  by  the  terms  of  the  contract  he  was  to  give.  If  the  ac- 
tion is  brought  by  the  vendee  against  the  vendor  for  not  conveying,  he 
must  aver  a  tender  of  the  consideration  money  before  suit  brought." 

Where  on  oxe  side  only,  performance  depends  on  prior  per- 
formance BY  other. — Sometimes  where  language  has  been  used  not 
unlike  that  in  the  last  case,  the  covenants  have  been  considered,  not  as 
mutual  conditions  to  be  performed  at  the  same  time,  but  as  conditions 
dependent  on  each  other,  in  which  the  performance  of  one  depended  on 
the  prior  performance  of  the  other.  Thus  in  Northrup  v.  Northrup,  6 
Cow.  296.  the  defendant  covenanted  to  pay  certain  rent  due  and  in  ar- 
rear  to  one  D.  Tomlinson,  on  a  certain  farm,  and  all  which  should  be- 
come due  on  the  2oth  of  March  1825 ;  the  whole  to  be  paid  on  that 
day;  and  the  plaintiff  covenanted  that,  on  the  defendant' s  so  paying  the 
rent,  he  the  plaintiff  would  give  up  and  discharge  a  certain  bond  and 
mortgage.  In  an  action  for  not  paying  the  rent  at  the  day,  the  cove- 
nants were  held  to  belong  to  that  class  in  which  the  obligation  to  per- 
form one  depended  on  the  prior  performance  of  the  other.  The  giving 
up  and  discharging  the  bond  and  mortgage  were  to  be  subsequent  to  the 
payment. 

The  enquiry  always  is  what  was  the  intention  and  understanding  of 
the  parties,  to  be  derived  from  their  contract.  The  conclusion,  in  the 
preceding  case,  that  the  performance  by  the  plaintiff,  of  his  part  of  the 
agreement,  was  naturally  to  be  subsequent  to  the  performance  of  the  de- 
fendant, it  is  said  in  Slocum  S^c.  v.  Despard,  8  Wend.  615.  must  have  rest- 
ed principally  upon  the  circumstance  that  the  payment  to  be  made  by  the 
defendant  was  to  be  made  to  a  third  person,  and  not  to  the  plaintiff  him- 
self, and  that  the  defendant  was,  of  course,  bound  to  produce  evidence 
of  the  payment,  which  presupposed  the  act  to  have  been  done  before  the 
plaintiff  was  bound  to  perform.  That  circumstance,  existing  also  in  the 
latter  case,  was  considered  to  be  entitled  to  the  same  weight  there,  that 
was  given  to  it  in  Northrup  v.  Northrup.     Independently  of  that  circum- 


484  Declarations  in  covenant. 

stance,  it  was  supposed,  that  neither  case  could  be  distinguished  from 
many  of  those,  in  which  the  covenants  have  been  held  to  be  mutually 
dependent. 

In  Dox  and  Mercer  v.  Dey,  3  Wend.  356.  it  appeared  by  the  agree- 
ment, which  was  made  in  March,  that  Dey  sold  to  Dox  S^  Co.  a  speci- 
fied quantity  of  wheat,  to  be  delivered  on  board  of  boats  at  or  near  a 
particular  storehouse,  at  any  time  Dox  Sf  Co.  might  require,  after  the 
first  day  of  April  next,  and  he  was  to  receive,  for  the  same,  a  certain 
sum  per  bushel,  on  the  first  day  of  September  next.  In  an  action  by 
Dox  4*  Co.  against  Dey,  for  failing  to  deliver  the  wheat,  the  promise  of 
Dey  was  held  to  be  independent.  For,  by  the  terms  of  the  agreement, 
the  delivery  of  the  wheat  became  due,  and  was  demandable,  on  the  first 
day  of  April,  and  the  consideration  money  was  not  to  be  paid  until  the 
first  of  September  thereafter. 

Afterwards,  in  the  case  of  Dey  v.  Dox  Sf  Mercer,  9  Wend.  129.  it 
was  argued  that  as  the  promise  to  deliver  the  wheat  was  independent, 
the  promise  to  pay  the  money  must  be  also  independent.  But  this,  the 
court  say,  is  an  entire  mistake.  "  In  all  cases,  (except  concurrent  pro- 
mises, where  the  performance  of  both  takes  place  at  the  same  time,) 
where  the  performance  of  one  promise  is  a  condition  precedent,  and 
must  be  performed,  or  excused,  before  the  right  of  action  exists  for  the 
performance  of  the  other  promise,  the  one  is  independent  and  the  other 
dependent.  The  definition  of  a  dependent  covenant  or  promise  shews 
this  :  HA.  covenants  to  do,  or  to  abstain  from  doing,  a  certain  act,  in 
consideration  of  the  prior  performance  of  some  covenant  on  the  part  of 
B.,  A.'s  covenant  is  termed  a  dependent  covenant,  because  B.'s  right 
of  sueing  A.  for  a  breach  of  this  covenant,  depends  upon  the  prior  per- 
formance, (or  what  is  equivalent,)  of  the  covenant  to  be  performed  by  B., 
which,  from  its  nature,  is  termed  a  condition  precedent.  But  it  is  ob- 
vious that  the  covenant  of  B.  is  independent,  because  it  must  be  per- 
formed without  reference  to  the  covenant  of  A.,  and  for  a  breach  of  it, 
A.  may  recover  damages,  without  shewing  a  performance  himself" 

Where  the  covenants  are  wholly  independent. — Courts  lean 
against  construing  covenants  to  be  independent,  unless  such  is  the  ob- 
vious intent  of  the  parties.  Dakin  v.  Williams  Sfc.  11  Wend.  67.  But 
if  the  justice  of  the  case  requires  it,  though  the  words  of  a  covenant  are 
dependent  in  form,  the  covenant  shall  yet  be  construed  to  be  independent. 
Bream  v.  Marsh,  4  Leigh  24. 

When  performance  by  plaintiff  need  not  be  averred  or  proved. 
Where  the  covenant  alleged  to  be  broken,  is  construed  to  be  indepen- 
dent, it  is  clearly  unnecessary  for  the  plaintiff  to  aver  or  prove  the  per- 
formance of  any  covenant  on  his  part.  Green,  J.  in  Fairfax  v.  Lewis, 
2  Rand.  35  and  38.  Duvall  v.  Craig,  2  Wheat.  58.  And  even  where 
the  covenants  are  dependent,  if  the  defendant  has  prevented  a  perfor- 
mance by  the  plaintiff",  it  is  not  necessary  that  the  plaintiff"  should  aver 
or  prove  a  complete  performance  to  entitle  him  to  his  action.  It  is  suffi- 
cient in  such  case  to  shew  a  readiness  to  perform,  and  that  he  was  hin- 
dered by  the  defendant.     Clark  v.  Franklin,  7  Leigh  1. 

How  BREACH  OF  COVENANT  IS  TO  BE  ASSIGNED. — A  brcach  should  be 
so  alleged  that  the  covenant  may  clearly  appear  to  have  been  broken. 
See  opinion  of  Roane,  J.  in  Austin's  adm'x  v.  Whitlock's  ex'ors,  1  Munf 


Declarations  in  covenant.  485 

492.  But  it  is  not  necessary  to  assign  a  breach  precisely  in  the  words 
of  the  covenant.  It  is  sufficient  to  lay  it  according  to  the  intention  of 
the  parties,  as  collected  from  the  instrument. 

In  Buster's  ez'or  v.  Wallace,  4  H.  &  M.  82.  the  declaration  set  forth 
a  covenant  to  sell  to  the  plaintiff  a  certain  quantity  of  land  in  a  parti- 
cular place,  and  to  refund  the  money,  or  a  due  proportion,  in  case  "  the 
land,  or  any  part  thereof,  should  be  lost."  The  breach  assigned  M^as 
that  the  defendant  had  no  land  at  all  in  the  place  specified  ;  and  it  was 
held  sufficient. 

In  Pollard  S^c.  v.  Dioight  Sfc.  4  Cranch  421.  the  defendants  cove- 
nanted that  they  were  "lawfully  seized  of  the  lands  and  premises,  with 
their  appurtenances,  and  had  good  right,  and  lawful  authority,  to  sell 
and  convey  the  same,  in  manner  and  form  aforesaid ;"  and  the  breach 
assigned  was  "  that  they  were  not,  nor  were  any  or  either  of  them,  law- 
fully seized  and  possessed  of  any  estate  whatever,  in  the  said  land  and 
premises,  nor  in  any  part  thereof,  nor  had  the  said  defendants,  or  either 
of  them,  good  right  and  lawful  authority  to  sell  and  convey  the  said  land 
and  premises  as  aforesaid."  It  was  objected  to  the  declaration  that  it 
ought  to  have  alleged  a  disseisin  of  the  plaintiffs,  to  enable  them  to  main- 
tain their  action.  This  led  to  the  enquiry  whether  the  covenant  of  the 
vendors  could  be  broken,  as  stated  in  the  declaration,  although  no  evic- 
tion had  taken  place ;  and  the  court  was  of  opinion  that  it  might  be  so 
broken. 

In  Duvall  V.  Craig,  2  Wheat.  59.  the  defendants,  by  their  deed,  cove- 
nanted that  the  premises,  bargained  and  sold,  were  free  from  all  former 
incumbrances  by  them.  The  declaration  averred  that  the  premises  were 
not  free  from  all  former  incumbrances  by  the  defendants,  but,  on  the 
contrary,  two  of  the  said  defendants  (who  were  named)  had,  theretofore, 
assigned  the  plat  and  certificate  of  survey  to  a  certain  J.  H.  C,  by  virtue 
of  which  assignment,  the  governor  of  Virginia  had  granted  the  land  to 
said  J.  H.  C,  by  a  certain  patent,  which,  at  the  time  of  the  deed,  was 
in  full  force,  by  reason  of  which  assignment,  patent  and  incumbrance, 
the  plaintiff  had  been  prevented  from  having,  or  enjoying,  all,  or  any 
part,  of  the  premises.  Upon  general  demurrer,  this  was  taken  as  an 
averment  that  the  possession  of  the  premises  was  legally  withheld  from 
the  plaintiff  by  the  parties  in  possession,  under  the  prior  title  thus  set 
up ;  and  the  covenant  was  held  to  be  thereby  broken.  It  was  not  con- 
sidered a  valid  objection  to  the  declaration  that  the  prior  title  was  stated 
to  be  under  an  assignment  by  only  two  of  the  covenantors ;  nor  that 
there  was  no  profert  of  the  assignment,  nor  that  the  assignment  was  not 
averred  to  have  been  made  for  a  valuable  consideration. 

Where  the  covenant  stated  in  the  declaration  is  a  mere  covenant  of 
warranty,  it  is  necessary  to  allege  substantially,  an  eviction  by  title 
paramount,  but  no  formal  words  are  prescribed  in  which  this  allegation 
is  to  be  made.  In  Day  S^c.  v.  Chism,  10  Wheat.  449.  the  plaintiffs 
averred  "  that  the  said  Ohadiah  had  not  a  good  and  sufficient  title  to 
the  said  tract  of  land ;  and  by  reason  thereof,  the  said  plaintiffs  were 
ousted  and  dispossessed  of  the  said  premises,  by  due  course  of  law." 
This  averment,  the  court  thought,  contained  all  the  facts  constituting  an 
eviction  by  title  paramount.  "The  person,"  says  the  court,  "who, 
from  want  of  title,  is  dispossessed  and  ousted  by  due  course  of  law,  must, 
we  think,  be  evicted  by  title  paramount." 


486  Declarations  in  covenant. 

In  DanieVs  ex'or  v.  Cook,  1  Wash.  306.  the  defendant's  testator  co- 
venanted for  himself  and  his  heirs  to  warrant  the  title  to  a  slave  against 
all  persons  whomsoever ;  and  the  declaration  charged  that  the  slave  had 
been  recovered  by  W.  M.  by  the  judgment  of  the  county  court  of  King 
and  Queen,  and  that  neither  the  testator  nor  the  executor  had  kept  the 
testator's  covenant.  It  was  held  unnecessary  to  charge  in  the  declara- 
tion notice  to  the  defendant,  or  his  testator,  of  the  pendency  of  the  ac- 
tion of  detinue. 

Breaches  should  not  be  assigned  in  the  same  count  which  are  repug- 
nant to  each  other.  In  Dai/  S^c.  v.  Chism,  10  Wheat.  453.  the  plain- 
tiffs alleged  that  from  the  defect  of  title  in  the  vendor,  they  had  not 
been  able  to  obtain  possession  of  the  premises ;  and  also  that  they  had 
been  dispossessed  of  those  premises  by  due  course  of  law.  These  aver- 
ments were  in  opposition  to  each  other.  But  the  allegation  that  pos- 
session had  never  been  obtained  was  immaterial,  because  not  a  breach 
of  the  covenant ;  and  a  majority  of  the  court  thought  it  might  be  disre- 
garded on  general  demurrer. 

By  and  against  whom  action  for  breach  of  covenant  may  be 
MAINTAINED. — An  actioH  for  breach  of  the  covenants,  contained  in  an 
indenture,  cannot  be  maintained  in  the  names  of  persons  who  are  no 
parties  to  the  indenture.  If  two  overseers  of  the  poor  be  parties  to  an 
indenture  of  apprenticeship,  and  the  covenants  be  with  them,  but  not 
with  their  successors,  the  action  cannot  be  maintained  in  the  names  of 
the  successors.     Poindexter  v.  Wilton  S^c.  3  Munf  183. 

Where  a  covenant  is  with  two  jointly ,  to  pay  a  sum  of  money  to  each, 
in  such  case,  the  interest  is  several,  and,  one  of  them  having  no  interest 
in  the  performance  of  the  duty  to  the  other,  the  action  must  be  several, 
not  joint.  In  Carthrae  v.  Brown,  3  Leigh  98.  the  declaration  alleged 
that  the  defendant  covenanted  with  Brown  and  Jarman  to  pay  them 
$  300,  to  wit,  to  each  of  them  one  moiety  thereof,  on  or  before  a  speci- 
fied day,  and  also  the  sum  of  $  400  at  another  day.  The  words,  "  to 
each  of  them,  one  moiety  thereof,"  were  considered  a  covenant  to  pay 
several  sums  to  each  of  two  persons,  respectively,  •  $  150  to  one,  and 
$  150  to  the  other;  and  the  words,  "  also  the  sum  of  $400,"  were  con- 
sidered not  to  alter  the  character  of  the  preceding  covenant,  but  on  the 
contrary  to  take  their  character  from  it.  It  was  therefore  held  that  an 
action  brought  by  the  surviving  covenantee,  to  recover  the  whole  money, 
could  not  be  sustained. 

Where  the  covenants  of  both  parties  are  expressed  to  be  on  their  own 
behalf,  and,  for  their  due  performance,  they  bind  themselves  each  to  the 
other,  each  may  maintain  an  action  of  covenant  against  the  other,  in 
his  individual  capacity,  notwithstanding  the  deed  purports  to  have  been 
signed  and  sealed  by  them,  as  agents  for  other  persons,  and  the  intro- 
ductory part  is  worded  in  like  manner.  Hartshorne  v.  Willis,  3  Munf. 
557. 

If  an  agent,  executor  or  trustee,  bind  himself,  by  a  personal  covenant, 
he  is  liable  at  law  for  a  breach  thereof,  in  the  same  manner  as  any  other 
person,  though  he  describe  himself  as  covenanting  as  agent,  executor 
or  trustee ;  for,  in  such  case,  the  covenant  binds  him  personally,  and  the 
addition  of  the  words,  as  agent,  executor  or  trustee,  is  but  matter  of  de- 
scription, to  shew  the  character  in  which  he  acts,  for  his  own  protec- 


Declarations  in  covenant*  487 

tion,  and  in  no  degree  affects  the  rights  or  remedies  of  the  other  parties. 
See  opn.  of  court  in  Duvall  v.  Craig,  2  Wheat.  56. 

The  statute  of  Virginia  declaring  that  executors  or  administrators 
may  sue  or  be  sued,  whether  they  be  or  be  not  named  in  the  instrument, 
is  cited  in  1  Rob.  Prac.  52. 

In  DanieVs  executor  v.  Cook,  1  Wash.  306.  cited  ante,  p.  486.  it  was 
objected  that  an  action  would  not  lie  against  the  executor,  upon  the  co- 
venant of  warranty,  because  the  testator  bound  himself  and  his  heirs, 
but  the  objection  was  overruled.  Without  enquiring  whether  the  exe- 
cutor is  bound  by  such  a  covenant  in  a  conveyance  of  real  estate, 
wherein  he  is  not  named,  the  court  considered  it  clear  that  in  personal 
contracts,  if  the  testator  be  bound,  the  executor  is  also  bound,  though 
not  named. 

In  Payne^s  ex'or  v.  Sampson,  2  Wash.  155.  the  action  was  for  breach 
of  covenants  for  quiet  enjoyment  of  the  land  conveyed,  and  that  the  pre- 
mises were  clear  of  incumbrances.  The  question  was  whether  the  ac- 
tion would  lie  against  executors;  they  not  being  specially  named.  The 
court  of  appeals  held  that  it  would. 

In  Tahh's  adm'r  v.  Binford,  4  Leigh  132.  the  bargainor  covenanted 
for  himself  and  his  heirs  with  the  bargainee  that  he  the  bargainor  would 
warrant  and  forever  defend  to  the  bargainee,  his  heirs  and  assigns,  the 
title  to  the  lands,  against  all  persons  whatever.  After  eviction,  an  ac- 
tion for  the  breach  of  this  covenant  was  brought  against  the  adminis- 
trator of  the  bargainor ;  and  the  action  was  sustained.  The  court  of 
appeals  considered  the  covenant  to  be  a  personal  covenant,  and  held 
the  personal  representatives  of  the  covenantor  bound,  although  not 
named. 

How  TITLE  MUST  BE  DEDUCED  BY  PLAINTIFFS,  CLAIMING  AS  HEIRS  OR 

DEVISEES  OF  COVENANTEE. — In  Day  S^c.  V.  Chism,  10  Wheat.  452.  the 
plaintiffs  claimed  both  as  heirs  and  devisees,  and  did  not  shew,  in  parti- 
cular, how  they  were  heirs,  nor  did  they  set  out  the  will.  Marshall,  C. 
J.  delivering  the  opinion  of  the  court  said,  "  It  is  undoubtedly  true, 
that  their  title  cannot  be  in  both  characters,  and  that  the  wdl,  if  it  passes 
the  estate  differently  from  what  it  would  pass  at  law,  defeats  their  title 
as  heirs.  But  a  man  may  devise  lands  to  his  heirs,  and  the  statement 
that  they  are  his  heirs,  as  well  as  his  devisees,  though  not  a  strictly  ar- 
tificial mode  of  declaring,  is  an  error  of  form,  and  not  of  substance. 
Of  the  same  character  is,  we  think,  the  omission  to  state  how  the  plain- 
tiffs are  heirs,  or  to  set  out  the  will.  Although  in  the  case  of  Denham 
V.  Stephenson,  1  Salk.  355.*  the  court  says  '  that  where  H.  sues  as  heir, 
he  must  shew  his  pedigree  and  coment  hares,  for  it  lies  in  his  proper 
knowledge,'  the  court  does  not  say  that  the  omission  to  do  this  would 
be  fatal  on  a  general  demurrer,  or  that  it  is  an  error  in  substance."  See 
also  Woodford's  heir  v.  Pendleton,  1  H.  &  M.  303.  cited  ante,  p.  476. 

*  Cited  ajite,  p.  417.  and  p.  476. 


488  Declarations  in  covmanU 

1.   On  a  covenant  to  warrant  and  defend  the  quantity  of  land  men- 
tioned in  a  deed.      Woodfm'dh  heir  v.  Pendleton,  1  H.  &  M.  303. 

J.  M.  complains  of  C.  T.  in  custody  &c.  of  a  plea  of  breach 
of  covenant:  For  this,  to  wit,  that  the  said  C.  and  M.  his  wife, 
on  the  17th  day  of  March,  in  the  year  1819,  at  the  said  county, 
by  their  certain  indenture  of  bargain  and  sale,  sealed  with  their 
seals,  and  to  the  court  now  here  shewn, 'the  date  whereof  is  the 
sanae  day  and  year  aforesaid,  did,  in  consideration  of  $11,000 
of  lawful  money  of  the  United  States,  paid  to  them  by  the  said 
J.  before  the  signing,  sealing  and  delivery  of  the  said  indenture, 
the  receipt  whereof  was  thereby  acknowledged,  grant,  bargain, 
sell,  alien  and  convey  unto  the  said  J.  his  heirs  and  assigns  for- 
ever, a  certain  tract  or  parcel  of  land,  and  its  appurtenances, 
containing  by  estimation  400  acres,  being  the  same  tract  or 
parcel  of  land  in  the  county  of  H.  which  &c.  (here  the  descrip- 
tion contained  in  the  deed  was  recited) ;  and  also  two  contiguous 
lots  or  parcels  of  land  in  the  same  county  of  H.  designated  by 
the  appellation  of  No.  15,  and  No.  17,  in  a  plan  and  survey  of 
a  tract  of  land  called  the  Brook  Farm,  made  by  R.  Y.  surveyor 
for  the  city  of  R.  for  R.  C.  W.  the  6th  day  of  May,  in  the  year 
1817 ;  which  two  lots  are,  in  and  by  the  said  indenture,  descri- 
bed to  contain  together  17  acres  and  34  poles,  and  to  be  bounded 
as  follows,  to  wit,  (pursuing  the  description  in  the  deed.) 

And  the  said  C.  T.  in  and  by  the  said  indenture  of  bargain 
and  sale,  did  covenant  with  the  said  J.  his  heirs  and  assigns,  as 
follows,  to  wit,  to  warrant  and  defend  all  the  land  thereby  sold 
and  conveyed,  and  the  quantity  thereof  as  therein  specified,  to- 
gether with  all  the  privileges  and  appurtenances  to  the  same  in 
any  manner  belonging,  unto  the  said  J.  and  his  heirs  and  assigns 
forever,  from  and  against  the  claims  and  demands  of  all  persons 
and  every  person  whatsoever,  to  execute  and  deliver  to  the  said 
J.  M.,  his  heirs  and  assigns,  when  thereto  required,  and  free  of 
any  cost  or  charge  whatever,  to  him  or  them,  any  other  deed  or 
deeds,  and  to  do  all  other  acts  considered  necessary  by  counsel, 
for  confirming  and  quieting  the  title  of  him  and  them,  in  and  to 
the  several  parcels  of  land  thereby  sold  and  conveyed,  agreea- 
bly to  the  true  intent  and  meaning  of  that  indenture  ;  and  lastly, 
that  he  the  said  C.  T.  was  then  in  lawful  possession  of  the  said 
several  parcels  of  land,  and  seized  of  an  indefeasible  title  in  fee 
simple  therein,  as  by  the  said  indenture,  reference  being  thereto 
had,  will  more  fully  and  at  large  appear.  And  although  the  said 
J.  hath  always,  from  the  time  of  making  the  said  indenture, 
hitherto,  well  and  truly,  performed,  fulfilled  and  kept  all  things 
therein  contained,  on  bis  part  to  be  done  and  kept,  according  to 
the  tenour  and  effect,  and  true  intent  and  meaning  thereof;  yet 


Declarations  in  covenant.  489 

the  said  J.  saith  that  the  said  C,  since  the  making  the  said  inden- 
ture as  aforesaid,  hath  not  performed,  fulfilled  and  kept  the  said 
covenants  in  the  said  indenture  contained  on  his  part  to  be  per- 
formed, fulfilled  and  kept,  according  to  the  tenour  and  efl^ect, 
and  true  intent  and  meaning  of  the  said  indenture,  in  this :  that 
the  said  tract  of  land  in  the  said  indenture  first  mentioned,  de- 
scribed and  conveyed,  as  containing  by  estimation  400  acres, 
and  warranted  by  the  said  C.  as  aforesaid  to  contain  that  quan- 
tity, does  not  in  fact  contain  that  quantity,  but  only  the  quantity 

of acres ;  and  that  the  said  two  lots  designated  in  the 

said  indenture  by  the  appellation  No.  15  and  No.  17.  and  therein 
described  and  conveyed  as  containing  together  17  acres  and  34 
poles,  and  warranted  by  the  said  C.  to  contain  that  quantity,  do 

not  in  fact  contain  that  quantity,  but  only  the  quantity  of 

acres,  to  wit,  at  the  county  of  H.  aforesaid.  And  so  the  said 
J.  in  fact  says,  that  the  said  C.  (though  often  requested  so  to  do), 
hath  not  kept  the  said  covenant  so  made  by  the  said  C.  with  the 
said  J.  in  manner  and  form  aforesaid,  but  hath  broken  the  same, 
and  to  keep  the  same  with  the  said  J.  hitherto  hath  refused,  and 
still  doth  refuse,  to  the  damage  of  the  said  J.  of  $5000  ;  and 
therefore  he  bringeth  suit  &c. 

2.   On  a  covenant  to  warrant  and  defend  the  title  to  land  convey pA. 

The  following  precedent  is  taken  from  the  declaration   in   Tabb's 
adm'r  v.  Binford,  4  Leigh  132.  cited  ante,  p.  487. 

P.  B.  complains  of  J.  P.  B.  administrator  of  T.  T.  deceased, 
of  a  plea  of  covenant  broken  in  this,  to  wit,  that  whereas  here- 
tofore, to  wit,  on  the  1st  March  1S15,  at  the  county  aforesaid, 
by  a  certain  indenture  made  between  the  said  T.  T.  in  his  life- 
time, of  the  one  part,  and  the  said  P.  B.  of  the  other  part,  which 
said  indenlure,  sealed  with  the  seal  of  the  said  T.,  is  to  the  court 
now  here  shewn,  the  date  whereof  is  the  same  day  and  year 
aforesaid,  the  said  T.  in  consideration  of  the  sum  of  2285  dol- 
lars to  him,  by  said  B.  then  paid,  did  grant,  bargain  and  sell, 
alien,  enfeoff  and  confirm  unto  him  the  said  B.  two  certain  tracts 
or  parcels  of  land  in  the  said  county,  one  lying  on  the  Great 
Cat-tail  run,  containing  397  acres,  more  or  less,  and  the  other  on 
the  Little  Cat-tail  run,  containing  fifty  acres,  more  or  less,  bound- 
ed and  described,  as  in  the  said  indenture  is  more  particularly  set 
forth  :  to  have  and  hold  the  said  parcels  of  land,  with  their  ap- 
purtenances, to  said  B.  his  heirs  and  assigns  forever.  And  the 
said  T.  T.  then  and  there,  by  the  said  indenture,  did  covenant 
for  himself  and  his  heirs,  to  and  with  the  said  B.  thathe  the  said 
T.  would  warrant  and  forever  defend,  to  said  J3.,  his  heirs  and 
62 


490  Declarations  in  covenant. 

assigns,  the  title  to  the  said  tracts  or  parcels  of  land,  against  all 
persons  whatever,  as  by  the  said  indenture,  reference  being 
thereunto  had,  will,  among  other  things,  more  fully  appear. 
And  the  plaintiff,  in  fact,  sailh  that  the  said  T.  in  his  lifetime, 
and  the  defendant  since  his  death,  have  not  defended  to  him, 
the  title  to  the  said  tracts  or  parcels  of  land,  against  all  persons 

whatever;  but,  on  the  contrary  thereof, ,  who  at  the  time 

of  making  said  indenture,  and  continually  until  the  eviction 
hereafter  mentioned,  had,  and  still  have,  lawful  title  to  the  said 
lands,  did  enter  into  the  same,  in  and  upon  the  possession  of  the 
plaintiff  in  the  said  lands  and  appurtenances,  and,  by  process  of 
law,  ejected  and  removed  the  plaintiff  against  his  will  from  his 
possession  and  occupancy  of  said  two  tracts  and  parcels  of  land, 
with  the  appurtenances,  and  still  holds  him  out  of  possession  of 
the  same,  to  wit,  on  &c.  at  &c.  contrary  to  the  form  and  effect 
of  said  indenture,  and  of  said  covenant  by  said  T.  so,  in  that 
behalf,  made  as  aforesaid.  By  reason  of  all  which  premises, 
the  said  plaintiff  hath  not  only  lost  the  said  tracts  of  land  &c. 
and  divers  large  sums  of  money,  amounting  in  the  whole  to  1000 
dollars,  by  him  laid  out  and  expended  in  improving  said  pre- 
mises, but  hath  also  paid  the  costs  and  charges  sustained  by  the 

lessees  of  said in  prosecuting  their  action  of  ejectment 

in  this  court,  against  him  the  said  B.  for  the  recovery  of  said 
lands  &c.  amounting  to  the  sum  of dollars,  and  also  di- 
vers other  sums  of  money,  amounting  to  the  sum  of dol- 
lars, in  defending  the  said  action  of  ejectment,  to  wit,  &c.  afore- 
said. And  so  the  plaintiff  saith  the  said  T.  in  his  lifetime,  and 
the  defendant  since  his  death,  have  not  kept  the  said  covenant, 
but  have  broken  the  same ;  and  the  said  T.  in  his  life,  and  since 
his  death  the  defendant,  though  often  requested,  have  not  kept 
the  said  covenant,  and  the  defendant  doth  still  refuse  to  keep 
the  same,  to  the  damage  of  the  plaintiff  of  $  10,000.  Where- 
fore he  bringeth  suit. 

3.  By  lessor  agaijist  lessee  for  breach  of  covenant  to  pay  rent  reserved 

by  deed. 

for  that,  whereas  heretofore,  to  wit,  on  the  first  day 

of  September,  in  the  year  1815,  at  the  county  aforesaid,  by 
a  certain  indenture,  then  and  there  made  between  the  said 
W.  of  the  one  part,  and  the  said  G.  of  the  other  part,  which 
indenture,  sealed  with  the  seal  of  the  said  G.  is  now  here 
shewn  to  the  court,  the  date  whereof  is  the  same  day  and  year 
aforesaid,  the  said  W.  did  demise,  lease  and  to  farm  let  unto 
the  said  G.  a  certain  house  and  stable  belonging  to  the  said  fV. 
in  the  town  of  Bath,  in  the  county  of  Berkeley,  (except  a  car- 


Declarations  in  covenant.  491 

tain  room  in  the  said  house,  then  known  by  No.  3.)  lying  and 
being  on  the  street  leading  to  HancocJctown,  with  all  and  singular 
the  appurtenances  thereunto  belonging,  (except  as  before  ex- 
cepted,) to  have  and  to  hold  the  said  house  and  stable,  with  their 
appurtenances,  (except  as  before  excepted,)  unto  him  the  said 
G.  for  the  space  of  three  years,  to  be  fully  completed  and  ended 
from  the  said  first  day  of  September  aforesaid  :  yielding  and 
paying  therefor,  to  the  said  JF.  his  heirs,  executors,  administra- 
tors or  assigns,  the  annual  or  yearly  rent  of  $  200,  to  be  paid 
each  and  every  year  severally,  on  or  before  the  first  day  of  Sep- 
tember in  each  year,  during  the  continuance  of  the  said  term. 
And  so  the  said  G.  did  thereby,  for  himself,  his  heirs,  executors, 
administrators  and  assigns,  covenant  and  agree  to  and  with  the 
said  W.,  his  heirs  and  assigns,  that  he  the  said  G.,  his  executors, 
administrators  and  assigns,  would  well  and  truly  pay,  or  cause 
to  be  paid,  to  the  said  W.  his  heirs  and  assigns,  the  said  yearly 
rent,  or  sum  of  $  200,  at  the  several  days  and  times  aforesaid, 
as  by  the  said  indenture,  reference  being  thereto  had,  will 
(among  other  things)  more  fully  and  at  large  appear.  By  virtue 
of  which  said  demise,  the  said  G.  afterwards,  to  wit,  on  the  said 
first  day  of  September  1815,  entered  into  and  upon  all  and  sin- 
gular the  said  demised  premises,  with  the  appurtenances,  and 
became  and  was  possessed  thereof  for  the  said  term,  so  to  him 
thereof  granted  as  aforesaid.  And  although  the  said  W.  hath 
always,  from  the  time  of  making  the  said  indenture,  hitherto 
well  and  truly  performed,  fulfilled  and  kept,  all  things,  in  the 
said  indenture  contained,  on  his  part  to  be  performed,  fulfilled 
and  kept,  according  to  the  tenour  and  effect,  true  intent  and 
meaning  of  the  said  indenture,  to  wit,  at  the  county  aforesaid  : 
Yet,  (protesting  that  the  said  G.  hath  not  performed,  fulfilled  or 
kept,  any  thing  in  the  said  indenture  contained,  on  his  part  and 
behalf  to  be  performed,  fulfilled  and  kept,  according  to  the  te- 
nour and  effect,  true  intent  and  meaning  thereof,)  the  said  JV, 
says,  that  after  the  making  of  the  said  indenture,  to  wit,  on  the 
first  day  of  September  1818,  at  the  pame  county,  a  large  sura 
of  money,  to  wit,  the  sum  of  $  600,  the  whole  of  the  rent  afore- 
said for  the  whole  of  the  said  term  then  elapsed,  became  and 
was,  and  still  is  in  arrea^  and  unpaid  to  the  said  TV.  contrary  to 
the  tenour  and  effect,  and  true  intent  and  meaning,  of  the  said 
indenture,  and  of  the  said  covenant  of  the  said  G.  by  him,  in 
that  behalf,  so  made  as  aforesaid.  And  so  the  said  TV.  in  fact 
saith,  that  the  said  &c.  (as  in  No.  1.) 


492  Declarations  in  covenant. 

4.  For  hire  agreed  to  he  paid  for  a  slave  and  the  value  of  clothing 

which  the  hirer  was  to  furnish. 

J.  B.  P.  complains  of  L.  TV.  in  custody  &c.  of  a  plea  of 
breach  of  covenant.  And  thereupon  the  said  plaintiff  saith  that 
heretofore,  to  wit,  on  the  first  day  of  January  1827,  at  the  said 
county  of  H.  the  said  L.  W.  by  a  certain  writing  obligatory, 
sealed  with  the  seal  of  the  said  L.  W.  and  to  the  court  now  here 
shewn,  the  date  whe;-eof  is  the  day  and  year  aforesaid,  did  co- 
venant, promise  and  obhge  himself  to,  and  with,  the  said  plain- 
tiff, in  mariner  and  form  following,  that  is  to  say,  that  he  the  said 
L.  W.  should  and  would  pay  to  the  said  plaintiff,  on  or  before 
the  first  day  of  January  1828,  seventy-five  dollars,  being  for  the 
hire,  for  the  year  1827,  of  a  negro  man  named  Charles  ;  and  also 
that  he  the  said  L.  W.  should,  and  would,  furnish  the  said  negro 
man  named  Charles  with  such  clothes  as  are  usually  furnished 
hired  negroes,  together  with  a  hat  and  blanket  at  the  end  of  the 
said  year  1827.  And  the  plaintiff  avers  that  the  saidZ/.  W.  did 
not  pay  to  him  the  said  plaintiff  the  said  sum  of  seventy-five 
dollars,  on  or  before  the  first  day  of  January  1828,  as  he  ought 
to  have  done,  according  to  the  form  and  effect  of  his  said  cove- 
nant, in  that  behalf,  so  made  as  aforesaid,  but  hath,  hitherto, 
wholly  neglected  and  refused  so  to  do,  to  wit,  on  the  said  first 
day  of  January  1828,  at  the  county  aforesaid.  And  the  said 
plaintiff  further  avers,  that  the  said  L.  W.  did  not  furnish  the 
said  negro  man  named  Charles  with  such  clothes  as  are  usually 
furnished  hired  negroes,  nor  with  a  hat  or  blanket,  at  the  end  of 
the  year  1827,  as  he  ought  to  have  done,  according  to  the  form 
and  effect  of  the  said  covenant,  in  that  behalf,  made  as  afore- 
said, but  hath,  hitherto,  wholly  neglected  and  refused  so  to  do, 
contrary  to  the  said  writing  obligatory  and  the  said  covenant  of 
the  said  L.  W.  in  that  behalf,  made  as  aforesaid,  to  wit,  on  the 
first  day  of  January  1828,  at  the  county  aforesaid.  Wherefore 
the  said  plaintiff  says,  that  by  reason  of  the  said  breaches  of 
the  said  covenants  of  and  by  the  said  L.  TV.  as  hereinbefore 
mentioned,  he  has  sustained  damage  to  the  amount  of  $150; 
and  therefore  he  brings  suit  &c. 

5,  On  a  covenant  to  pay  the  plaintiff  at  a  certain  rate  for  every 
bushel  of  wheat  which  he  should  deliver,  at  a  particular  place, 
within  a  specified  time. 

The  following  precedent  is  copied  from  the  declaration  in  the  case  of 
Lewis  V.  Weldon  and  others,  3  Rand.  71.  in  which  it  was  decided  that 
the  plaintiff  had  sufficiently  averred  the  performance  of  the  covenants, 
on  his  part,  to  entitle  him  to  recover  the  price  of  the  wheat  which  he 
delivered. 


Declarations  in  covenant.  493 

L.  L.  complains  of  J.  W.,  E.  T.,  G.  T,  and  A.  O.  in  custody 
&c.  of  a  plea  of  covenant  broken,  in  this,  that  whereas  by  a 
certain  article  of  agreement  made  at  the  county  aforesaid,  on 
the  13ih  day  of  January  in  the  year  1S13,  and  recited  to  be  an 
article  of  agreement  between  the  said  L.  L.  of  the  one  part,  and 
the  said  J.  TV.  (a  certain  B.  T.)  the  said  E.  T.,  G.  T.  and  A. 
O.  of  the  other  part,  which  said  article,  sealed  only  with  the 
seals  of  the  said  J.,  E.,  G.  and  A.  is  to  the  court  now  here  shewn, 
the  date  whereof  is  on  the  same  day  and  year  aforesaid,  it  is 
witnessed  that  the  said  L.  had  agreed  to  sell  to  the  said  J.  &c. 
all  the  said  L.^s  crop  of  wheat,  in  the  county  of  F.  aforesaid,  at 
the  price  of  one  dollar  and  fifty  cents  per  bushel,  or  every  sixty 
pounds  weight  of  merchantable  wheat,  at  the  barn  of  the  said 
L.  the  whole  whereof  to  be  delivered  between  the  date  of  the 
said  article  and  the  first  day  of  March  then  next  ensuing  ;  and 
the  said  J.,  E.,  G.  and  A.  covenanted  with  the  said  L.  to  pay 
the  said  L.  for  the  said  wheat  at  the  rate  of  one  dollar  and  fifty 
cents  for  each  bushel,  or  every  sixty  pounds  of  wheat,  which 
should  be  so  delivered,  within  six  months  from  the  date  of  the 
said  article,  as  by  the  said  article  will  fully  appear.  And  the 
said  L.  in  fact  saith,  that  he  delivered  to  the  aforesaid  J.  the 
whole  crop  of  wheat  aforesaid,  to  wit,  2484  bushels  and  15 

pounds,  equal  to pounds,   at  his  barn,  after  the  date  of 

the  said  article,  whereof  he  delivered  42S^  bushels,  equal  to 

pounds,  before  the  first  day  of  March  then  next  ensuing, 

and  he  further  in  fact  saith,  that  he  was  always  ready  to  deliver 
the  residue  before  the  1st  of  March  at  his  barn  aforesaid,  but 
neither  the  said  JF.  nor  any  person  on  his  behalf,  did  attend  at 
the  barn  aforesaid  to  receive  the  same  until  after  the  said  1st 
day  of  March,  after  which  date,  and  before  the  29th  of  June, 
1813,  he  delivered  the  residue.  And  he  further  in  fact  saith, 
that  the  said  J.,  E.,  G.  and  A.  did  not  pay  to  the  said  L.  for  the 

said bushels  of  wheat  at  the   rate  of  $  1.50  cents  per 

bushel,  or  at  the  rate  of  $  1.50  cents  for  every  sixty  pounds  so 
delivered,  within  six  months  from  the  date  of  the  said  article, 
against  the  form  and  effect  of  the  said  article,  and  of  the  said 
covenant  of  the  said  J.,  E.,  G.  and  A.  made  in  that  behalf  as 
aforesaid.  And  so  the  said  L.  saith,  that  the  said  J.,  E.y  G.  and 
A.  have  not  kept  their  covenant  aforesaid,  made  with  the  said 
L.  as  aforesaid,  but  have  broken  the  same,  and  to  keep  the  same 
with  the  said  L.  hitherto  have  refused,  and  still  do  wholly  re- 
fuse, to  the  damage  of  the  said  L. dollars ;  and  there- 
fore he  brings  suit  &c. 


494  Declarations  in  covenant. 

6.   On  a  writing  acJmowledging  the  receipt  of  certain  notes,  and 
stating  how  the  same,  ivhen  collected,  were  to  be  ajjplied. 

The  following  precedent  is  taken  from  the  declaration  in  JarretVs 
adm'r  v.  Jarrett,  7  Leigh  93.  The  defendants  demurred  generally  to 
the  declaration,  but  all  the  counts  were  considered,  by  the  court  of  ap- 
peals, to  be  good :  and  it  was  held  therefore  that  the  demurrer  was 
rightly  overruled. 

J.  J,  complains  of  J,  D.  S.  and  M.  J.  administrator  and  ad- 
ministratrix of  all  and  singular  the  goods  and  chattels,  rights 
and  credits  of  E.  J.  deceased,  at  the  time  of  his  death,  who  died 
intestate,  in  custody  &c.  of  a  plea  of  breach  of  covenant.  For 
that  the  said  E.  J.  in  his  lifetime,  on  the  4th  day  of  April,  in 
the  year  1817,  at  the  county  of  K.  aforesaid,  by  his  certain  co- 
venant in  writing,  sealed  with  his  seal,  and  to  the  court  now 
here  shewn,  the  date  whereof  is  the  same  day  and  year  afore- 
said, acknowledged  that  he  the  said  E.  J.  in  his  lifetime,  had 
received  from  the  said  J.  J.  by  the  name  of  J.  J.  jr.  two  obliga- 
tions for  collection ;  the  one,  a  note  on  a  certain  J.  H.  for  the 
sum  of  43S  dollars  50  cents,  the  other,  a  note  on  B.  F.  R.  for 
the  sum  of  150  dollars,  which  notes,  when  collected,  the  said 
E.  J.  in  his  lifetime,  covenanted  and  promised  to  credit  on  a 
bond  for  1000  dollars,  due  the  first  of  May  1816,  held  by  the 
said  E.  J.  on  a  certain  J.  J.  sr.  as  by  the  said  covenant  more 
fully  appears.  And  the  said  J.  J.  in  fact  says,  that  although  the 
said  E.  J.  in  his  lifetime,  to  wit,  on  the  first  day  of  June  1817, 
at  K.  aforesaid,  collected  the  amount  of  said  note  on  the  said 
J.  H.  for  the  sum  of  438  dollars  50  cents,  and  also  collected  the 
amount  of  the  said  note  on  B.  F.  R.  for  the  sum  of  150  dollars,  yet 
the  said  E.  J.  in  his  lifetime,  nor  the  said  J.  D.  S.  and  M.  J.  ad- 
ministrator and  administratrix  as  aforesaid,  since  the  decease  of 
the  said  E.  J.  did  not,  nor  would,  credit  the  amount  of  the  said 
notes,  on  the  said  bond,  for  1000  dollars,  which  was  due  on  the 
said  1st  day  of  May  1816,  held  by  the  said  E.  J.  against  the  said 
J.  J.  sr. 

And  for  that  also,  heretofore,  to  wit,  on  the  4th  day  of  April, 
in  the  year  1817,  at  the  county  o^K.  aforesaid,  the  said  E.  J.  in  his 
lifetime,  by  his  certain  other  covenant  in  writing,  sealed  with  his 
seal,  and  to  the  court  now  here  shewn,  the  date  whereof  is  the 
same  day  and  year  last  aforesaid,  acknowledged  that  ha  had  re- 
ceived from  the  said  J.  J.  by  the  name  of  J.  J.  jr.  two  certain  other 
obligations  for  collection,  to  wit,  one  note  on  J.  H.  for  the  sum 
of  438  dollars  50  cents,  the  other  a  note  on  a  certain  B.  F.  R. 
for  the  sum  of  150  dollars,  which  said  notes,  when  collected,  the 
said  E.  J.  in  his  lifetime,  covenanted  to  credit  on  a  bond  for  1000 


Declarations  in  covenant.  495 

dollars,  due  the  1st  of  May  1816,  held  by  the  said  E.  J.  in  his 
lifetime,  against  a  certain  J.  J.  sr.  as  by  the  said  covenant  more 
fully  appears.  And  the  said  J.  J.  in  fact  says,  that  the  said  E. 
J.  in  his  lifetime,  nor  the  said  J.  D.  S.  and  M.  J.  administrator 
and  administratrix,  did  not,  nor  would,  collect  the  amount  of 
the  said  note  on  J.  H.  for  the  sum  of  438  dollars  50  cents,  nor 
did,  nor  would,  collect  the  amount  of  the  said  note  on  B.  F. 
R.  for  the  sum  of  150  dollars,  nor  did,  nor  would,  use  any  en- 
deavour to  collect  the  said  notes,  but,  on  the  contrary  thereof, 
omitted  to  make  timely  application  for  the  same,  and  omitted  to 
make  any  effort  whatever  for  their  recovery  and  collection, 
(although  often  requested  so  to  do,)  and  also  to  account  for  the 
same. 

And  for  that  also,  heretofore,  to  wit,  on  the  4th  day  of  April, 
in  the  year  1817,  at  the  county  aforesaid,  the  said  E.  J.  in  his 
lifetime,  by  his  certain  other  covenant  in  writing,  sealed  with 
his  seal,  and  to  the  court  now  here  shewn,  the  date  whereof  is 
the  same  day  and  year  last  aforesaid,  acknowledged  that  he  had 
received  from  the  said  J.  J.  by  the  name  of  J.  J.  jr.  two  other 
certain  obligations,  to  wit,  one  note  on  a  certain  J.  H.  for  the 
sum  of  438  dollars  50  cents,  the  other  a  note  on  a  certain  B.  F. 
R.  for  the  sum  of  150  dollars,  and,  by  the  same  covenant,  pro- 
mised to  endeavour  to  collect  the  amount  of  the  said  notes,  and 
when  collected,  to  credit  the  amount  which  might  be  collected 
on  a  certain  bond  for  1000  dollars,  due  the  1st  of  May  1816, 
held  by  the  said  E.  J.  upon  a  certain  J.  J.  sr.  And  the  said  /. 
J.  in  fact  says,  that  the  said  E.  J.  in  his  lifetime,  nor  the  said 
J.  D.  S.  and  M.  J.  administrator  and  administratrix  as  afore- 
said, since  the  decease  of  said  E.  did  not,  nor  would,  collect  the 
amount  of  the  said  note  on  J.  H.  for  the  sum  of  438  dollars  50 
cents,  nor  did,  nor  would,  use  any  endeavour  to  collect  the  same, 
nor  did,  nor  would,  collect  the  amount  of  the  said  note  on  B.  F. 
R.  for  the  sum  of  150  dollars,  nor  did,  nor  would,  use  any  en- 
deavour to  collect  said  notes,  but,  on  the  contrary  thereof,  omit- 
ted to  make  timely  application  for  the  amount  of  the  same 
notes,  or  either  of  them,  and  omitted  to  make  any  effort  what- 
ever for  their  recovery  and  collection,  and  have  also  failed  in 
any  manner  to  account  for  the  same,  although  often  requested 
so  to  do.  And  so  the  said  E.  J.  in  his  lifetime,  and  the  said  J. 
D.'  S.  and  M.  J.  administrator  and  administratrix  as  aforesaid, 
since  the  -decease  of  the  said  E.  although  often  required,  the 
said  covenants  aforesaid,  with  the  said  /.  J.  above  in  this  behalf 
made,  have  not  performed  to  him,  but  broke,  and  have  altoge- 
ther denied,  and  yet  do  deny,  to  perform  them,  or  either  of 
them,  to  him,  to  the  damage  of  the  said  plaintiff  of  $  1000  ;  and 
therefore  he  sues  &c. 


496  Declarations  in  covenant. 

7.  Against  a  devisee  on  the  specialty  of  testator. 

The  devisee  was  for  the  first  time  made  chargeable,  for  the  debts  of 
his  testator,  in  respect  of  lands  devised  to  him,  by  the  statute  of  3  W. 
S^  31.  which  has  been  enacted  in  Virginia,  and  is  in  1  R.  C.  1819,  p. 
391.  ch.  105. 

By  this  statute,  the  legislature,  in  terms,  limited  the  means  of  recovery 
by  the  creditors,  for  whom  it  provided,  to  actions  of  debt.  And  the 
court  of  king's  bench  decided  that  the  particular  remedy  given,  by  ac- 
tion of  debt,  on  bonds  and  specialties,  where  there  was  no  remedy  be- 
fore, could  not  be  extended  by  the  judges  to  actions  of  covenant.  Wil- 
son V.  Knubley,  7  East.  128.     Sugden  on  Vendors  584. 

The  act  of  Virginia  passed  March  9,  1836,  to  amend  the  former 
statute,  declares  that  the  devisee  of  any  messuage,  land,  tenement  or 
hereditament,  or  of  any  profit,  term  or  charge  out  of  the  same,  claiming 
under  the  will  of  any  person  who  shall  hereafter  die,  shall  be  liable  to 
any  action  of  covenant,  or  any  other  action,  upon  the  deed  of  the  testa- 
tor, which  could  be  maintained  against  the  heir,  in  like  manner,  and  to 
the  same  extent,  as  the  devisee  is  now  liable  to  an  action  of  debt,  on  the 
obligation  of  his  testator.     Sess.  acts  1835,  6.  p.  42.  ch.  63. 

8.   On  an  agreement  to  refer  to  arbitration  and  abide  by  the  award. 
1  Rob.  Prac.  269  to  280. 

What  must  be  comprehended  in  the  award. — Though  the  words 
of  the  award  be  less  comprehensive  than  those  of  the  submission,  yet 
the  award  will  be  good  unless  it  appear  that  something  else  was  in  dis- 
pute between  the  parties,  besides  what  is  comprehended  therein.  Thus 
in  Horrel  v.  M  ^Alexander,  3  Rand.  94.  the  bond  of  submission  stated 
that  divers  disputes  had  arisen  between  the  parties,  and  all  matters  in  dis- 
pute were  submitted,  and  the  award  shewed  that  the  arbitrators  had 
decided  on  one  matter  only,  namely  a  contract  for  the  sale  of  the  land. 
There  was  no  evidence  to  shew  that  there  was  any  thing  in  dispute  be- 
tween the  parties  besides  the  land  contract,  and  in  the  absence  of  such 
evidence,  the  divers  disputes  mentioned  in  the  submission  were  pre- 
sumed to  have  arisen  on  the  single  subject  of  the  land.  The  award  was 
therefore  held  to  be  good. 

To  WHOM  PAYMENT  MAY  BE  AWARDED. — In  general  an  award  to  pay 
to  a  stranger  to  the  submission,  is  void,  but  this  rule  was  not  considered 
applicable  to  the  case  of  Macon  v.  Crump,  1  Call  575.  In  that  case  the 
submission  was  of  a  matter  between  Macon  and  Crump  as  executor  of 
Clopton,  and  the  award  was  to  pay  to  Crump  and  Parkeson  executors  of 
Clopton.  Yet  the  award  was  held  good.  There  was  no  doubt  that  all 
the  executors  of  Clopton  were  in  the  contemplation  of  the  submission 
when  an  account  was  to  be  adjusted  in  which  the  interest  of  his  estate 
was  involved.  Each  of  the  executors  might,  after  the  award,  have  re- 
ceived the  money  and  granted  a  discharge.  And  the  payment  to  Par- 
keson,  as  executor,  would  have  been  for  the  benefit  of  Crump  as  exe- 
cutor. 

By  whom  payment  may  be  directed. — Where  the  award  directs 
payment  by  one  who  is  a  party  to  the  submission,  and  by  another  who  is 


Declarations  in  covenant.  497 

no  party,  the  latter  portion  of  the  award  may  sometimes  be  rejected  as 
surplusage.  In  Richards  v.  Brockenbrough's  adin'r,  1  Rand.  449.  the 
difference  was  between  Beale  and  Richards,  but  Brockenbrough  became 
the  surety  oi  Beale,  and  the  arbitration  bond  was  conditioned  that  Beale 
and  Brockenbrough  should  abide  by  the  determination  of  the  arbitra- 
tors. The  award  required  Beale  and  Brockenbrough  to  pay  the  money. 
And  it  was  objected  to  as  erroneous  in  making  Brockenbrough  jointly 
liable  with  Beale  to  pay  the  debt  of  the  latter.  The  court  of  appeals 
said,  it  appeared  by  the  award  that  no  other  matters  were  considered  but 
those  between  Richards  and  Beale,  and  the  direction  that  Beale  and 
Brockenbrough  should  pay  was  evidently  made  in  adherence  to  the  in- 
formality of  expression,  in  the  condition  of  the  bond,  which  required 
"  the  said  Beale  and  Brockenbrough"  to  stand  to  the  award.  The  court 
was  therefore  of  opinion  that  the  direction  as  to  Brockenbrough  could 
only  be  regarded  as  surplusage. 

In  Armstrong  v.  Armstrongs,  1  Leigh  491.  the  submission  was  be- 
tween Archibald  Armstrong  sen'r  of  the  one  part  and  Richard  Ar?n- 
strong  and  Archibald  Armstrong  jr.  of  the  other  part,  and  stated  that  a 
dispute  had  taken  place  between  the  said  parties,  and  they  had  chosen 
certain  persons  to  settle  the  difference  between  the  said  parties,  and  fix 
the  amount  to  be  paid  to  either  party.  The  award  set  forth  that  on  set- 
tlement of  accounts,  it  appeared  that  A.  A.  jr.  was  indebted  to  A.  A. 
sen'r  <$  127;  and  it  directed  that  a  certain  sum  for  which  R.  A.  had 
sued  A.  A.  sen'r,  with  a  moiety  of  the  costs,  should  be  deducted  from 
the  $  127,  and  the  balance  be  paid  over  to  him  by  the  other  parties. 
Upon  which,  action  was  brought  against  R.  A.  and  A.  A.  jr.  by  ^.  ^. 
sen'r,  for  the  sum  awarded  him.  It  was  objected  that  the  award  was  of  mat- 
ter not  submitted ;  for  it  was  said,  the  submission  was  only  of  matters  in 
difference  between  the  plaintiff  and  the  defendants  jointly,  and  the 
award  did  not  ascertain  that  the  defendants  jointly  owed  the  plaintiff 
any  thing,  nor  that  he  owed  any  thing  to  them  jointly.  The  court  of 
appeals  said,  it  was  not  to  be  presumed  that  the  arbitrators  would  make 
R.  A.  jointly  liable  with  A.  A.  junior  for  a  debt  which  the  latter  alone 
owed.  That  would  be  to  presume  against,  instead  of,  in  favour  of  the 
award.  They  would  rather  suppose  that  R.  A.  had  joined  in  the  sub- 
mission either  as  part  of  the  firm  on  which  A.  A.  sen'r  had  the  demand, 
or  as  surety  for  A.  A.  jr.,  and  they  would  presume  that  the  arbitrators 
had  before  them  evidence  that  R.  A.  was  bound  (either  as  principal  or 
surety)  for  the  debt.  As  to  the  private  debt  due  to  R.  A.,  as  he  was 
bound  for  the  whole  sum  due  to  A.  A.  sen'r,  the  deduction  of  this  debt 
was  in  his  (R.  A.'s)  favour,  and  he  could  not  object. 

What  award  is  considered  mutual  and  final. — An  award  of  pay- 
ment, of  a  specific  sum,  by  one  party  to  another^  is  mutual  and  suffi- 
cient, without  directing  the  latter  to  execute  a  release  or  do  any  other 
act.  Doolittle  v.  Malcom,  8  Leigh  608.  M' Kinstrey  v.  Solomons,  2 
Johns.  Rep.  62.  ^.  C.  13  Johns.  27. 

In  Doolittle  v.  Malcom,  the  award  of  the  arbitrators  was  endorsed  on 
the  agreement  of  submission,  and  signed  by  them.  It  was  in  these 
words :  "  We  the  undersigned  arbitrators  do  agree  that  A.  L.  D.  shall 
pay  to  J.  M.  the  sum  of  S  200  within  six  months  after  date.  Septem- 
ber the  26th,  1831."  This  award  was  taken  to  settle  all  matters  sub- 
63 


498  Declarations  in  assumpsit. 

mitted  in  the  agreement,  and  was  therefore  held  to  be  sufficiently  certain 
and  final. 

Who  may  sue  for  breach  of  the  covenant. — The  party  with  whom 
the  covenant  of  submission  is  made,  is  entitled  to  sue  for  breach  of  the 
covenant.  In  Macon  v.  Crump,  1  Call  575.  the  submission  being  be- 
tween Macon  and  Crump  as  executor  of  Clopton,  and  the  award  being 
to  pay  to  Crump  and  Parkeson  executors  of  Clopton,  the  action  was 
brought  by  Crump,  and  his  declaration  set  forth  that  in  the  dispute  be- 
tween Macon  and  Crump  executor  of  Clopton,  a  certain  sum  was 
awarded  to  the  plaintiff.  The  defendant,  after  taking  oyer  of  the  cove- 
nant and  award,  demurred  to  the  declaration.  And  the  court  of  ap- 
peals overruled  the  demurrer,  being  of  opinion  that  the  award  was  set 
forth  according  to  the  operation  of  the  law  thereupon,  and  that  Crump 
was  entitled  to  sue  in  his  own  name. 

The  suit  of  3Iacon  v.  Crump  was  in  the  plaintiff's  own  right,  for  a 
sum  compounded  of  two  sums  whereof  one  was  due  to  him  in  the  cha- 
racter of  executor.  But  the  objection  on  this  ground  was  overruled, 
Roane,  J.  said,  "  The  answer  is  that  the  action  is  on  a  covenant  made  to 
the  plaintiff,  in  his  own  right,  on  breach  of  which  an  action  accrued  to 
him,  and  his  character  of  executor  is  no  otherwise  involved  in  the  ac- 
tion than  that  he  submitted  a  matter  in  which  he  was  concerned  as  exe- 
cutor. The  defendant  might  have  saved  his  covenant,  by  paying  a  sum 
of  money  to  him,  (amongst  other  things,)  in  that  character." 

Profert  to  ije  made  of  submission  and  award. — In  an  action  on 
a  deed  conditioned  to  abide  by  an  award,  and  on  an  award  made  in  pur- 
suance thereof,  profert  of  the  award  is  equally  necessary  with  the  deed 
to  make  out  the  cause  of  action.  Roane,  J.  in  Macon  v.  Crump,  1  Call 
581. 

HoAV  MUCH  OF  AWARD  MUST  BE  SET  FORTH. — In  an  actiou  for  not 
performing  the  award,  the  plaintiff  need  only  shew  so  much  of  the 
award  as  is  sufficient  to  state  his  demand.  He  need  not  shew  the  award 
on  both  sides ;  if  there  be  any  thing  by  way  of  condition,  precedent  to 
the  payment  of  the  money,  the  defendant  must  set  it  forth  in  pleading. 
Opn.  of  ct.  in  M' Kinstry  v.  Solomons,  2  Johns.  62.  Doolittle  v.  Mal- 
com,  8  Leigh  608. 

in.    IN    ASSUMPSIT. 

Assumpsit  not  to  be  brought  on  sealed  instrument. — When- 
ever a  man  may  have  an  action  on  a  sealed  instrument,  he  is  bound  to 
resort  to  it.  In  Young  v.  Preston,  4  Cranch  239.  the  action  was  as- 
sumpsit, brought  by  Preston  against  Young,  upon  a  quantum  meruit,  for 
work  and  labour.  At  the  trial  the  defendant  Fown^  offered,  in  evi- 
dence, a  sealed  agreement  between  the  parties,  and  offered  further  evi- 
dence that  the  work  and  labour,  for  which  this  action  was  brought,  were 
done  in  consequence  of  that  agreement,  and  prayed  the  court  to  in- 
struct the  jury  that  if,  from  the  evidence,  they  should  be  of  opinion  that 
the  said  work  and  labour  was  done  in  consequence  of  the  sealed  agree- 
ment, the  action  of  assumpsit  would  not  lie.  But  evidence  having  been 
offered  to  the  jury  that  the  plaintiff  was  prevented  from  completing  the 
work  mentioned  in  the  agreement  by  the   defendant,  who   employed 


Declarations  in  assnmjpsit.  499 

another  person  to  finish  it,  the  court  refused  to  give  the  instruction  so 
asked,  and  thereupon  instructed  the  jury  that  if  they  should  be  of  opi- 
nion that  the  plaintiff  was  prevented  by  the  defendant  from  proceeding 
to  complete  the  said  work,  according  to  the  said  agreement,  in  a  reason- 
able time,  then  the  plaintiff  had  a  right  to  recover,  in  this  form  of  ac- 
tion, from  the  defendant,  as  much  money  as  the  plaintiff  deserved  to 
have  for  the  work  done  by  him  for  the  defendant,  although  the  same 
was  done  in  consequence  of  the  said  agreement,  and  although  the  whole 
work  mentioned  in  the  said  agreement  was  not  completed.  To  which 
refusal  and  instruction  the  defendant  excepted,  and,  verdict  and  judg- 
ment being  rendered  against  him,  he  brought  his  writ  of  error.  The 
supreme  court  reversed  the  judgment,  some  of  the  judges  saying  that 
the  plaintiff  had  a  clear  right  of  action  upon  the  sealed  instrument;  for 
he  might  aver  in  his  declaration  that  he  had,  in  part,  performed  the  work 
and  was  ready  to  do  the  rest  but  was  prevented  by  the  defendant.*  The 
opinion  of  the  court  of  appeals  in  Lewis  v.  Weldon  and  others,  3  Rand. 
82.  is  in  accordance  with  this  decision. 

The  case  of  The  Marine  Assurance  Company  v.  Young,  1  Cranch 
331.  was  an  action  of  assumpsit  against  the  company  upon  a  policy  of 
insurance  given  by  the  company  under  its  common  seal,  and  signed  by 
the  president  and  secretary.  After  verdict,  the  supreme  court  ordered 
the  judgment  to  be  arrested  because  the  action  was  a  special  action 
iipon  the  case  on  the  policy,  and  the  declaration  shewed  that  the  policy 
was  a  specialty. 

It  may  now  be  brought  against  a  corporation. — "  The  technical 
doctrine,  that  a  corporation  could  not  contract,  except  under  its  seal, 
or,  in  other  words,  could  not  make  a  promise,"  mr.  justice  Story  re- 
marks, "  if  it  ever  had  been  fully  settled,  must  have  been  productive  of 
great  mischiefs.  Indeed,  as  soon  as  the  doctrine  was  established,  that 
its  regularly  appointed  agent,  could  contract  in  their  name,  without  seal, 
it  was  impossible  to  support  it ;  for  otherwise  the  party,  who  trusted  to 
such  contract,  would  be  without  remedy  against  the  corporation.  Ac- 
cordingly, it  would  seem  to  be  a  sound  rule  of  law  that  wherever  a  cor- 
poration is  acting  within  the  scope  of  the  legitimate  purposes  of  its  in- 
stitution, all  parol  contracts  made  by  its  authorized  agents,  are  express 
promises  of  the  corporation ;  and  all  duties  imposed  on  them  by  law, 
and  all  benefits  conferred  at  their  request,  raise  implied  promises,  for  the 
enforcement  of  which,  an  action  may  well  lie."  See  opinion  of  court 
delivered  by  Story,  J.  in  The  Bank  of  Columbia  v.  Patterson's  adm'r, 
7  Cranch  306. 

The  decisions  in  the  United  States  upon  this  subject,  are  referred  to 
with  respect  and  approbation,  by  the  court  of  king's  bench  in  the  late 
case  of  Beverley  v.  The  Lincoln  Gas  Light  and  Coke  Company,  6  Ad.  & 
E.  829.  33  Eng.  Com.  Law  Rep.  222.  This  was  an  action  against 
the  gas  company  for  gas  meters  sold  and  delivered,  and  the  decision  in 
the  case  is  that  a  corporation  may  be  sued  in  assumpsit,  as  well  as  in 
debt,  on  an  executed  parol  contract. 

Or  by  a  corporation. — Assuming  it  to  be  now  established  that  a 
corporation  may  sue,  or  be  sued,  in  assumpsit,  upon  executed  contracts 

See  ante,  p.  484.  and  p.  492,  3. 


600  Declarations  iji  assumpsit. 

of  a  certain  kind,  among  which  are  included  such  as  relate  to  the  sup- 
ply of  articles  essential  to  the  purposes  for  which  the  corporation  is 
created,  the  question  in  Churcli  v.  The  Im'perial  Gas  Light  and  Coke 
Company,  6  Ad.  &  E.  846.  33  Eng.  Com.  Law  Rep.  230.  was  whether 
in  respect  to  the  right  of  a  corporation  to  maintain  assumpsit,  there  is 
any  sound  distinction  between  contracts  executed  and  executory.  The 
court  of  king's  bench  held,  in  the  last  case,  that  the  action  by  the  cor- 
poration, though  upon  an  executory  consideration,  was  well  brought. 

Time  of  the  promise  to  be  stated. — In  the  case  of  a  common  as- 
sumpsit, the  day  is  alleged  only  for  form  and  the  defendant  cannot  con- 
fine the  plaintiff  to  the  day  alleged  in  the  declaration.  In  Arnold  v. 
Arnold,  3  Bingh.  N.  C.  81.  32  Eng.  Com.  Law  Rep.  48.  the  writ  issued 
on  the  20th  of  February,  and  the  promise  was  laid  in  the  declaration  on 
the  27th  of  February.  After  verdict  for  the  plaintiff,  it  was  moved  to 
arrest  the  judgment  on  the  ground  that  the  cause  of  action  appeared  on 
the  face  of  the  record  to  have  accrued  after  the  issuing  of  the  writ.  But 
the  court  of  common  pleas  held  the  day  to  be  immaterial  and  overruled 
the  motion.  The  court,  in  its  opinion,  took  a  distinction  between  an 
action  on  an  oral  promise  and  upon  a  promissory  note,  saying  with  re- 
spect to  the  latter  that  the  day  would  be  material. 

An  objection  to  the  declaration  because  of  the  manner  in  which  the 
time  is  alleged,  is  listened  to  with  very  little  favour  in  those  cases  in 
which  the  allegation  is  required  to  be  made  only  for  form.  In  Webb  v. 
Baker,  7  Ad.  &  E.  841.  34  Eng.  Com.  Law  Rep.  240.  the  declaration 
stated  that  the  defendant,  "  on  the  13th  day  of  April  A.  D.  1836,  was 
indebted  to  the  plaintiff  in  .£50.  for  goods  sold  and  delivered,  by  the 
plaintiff,  to  the  defendant,  and  at  his  request;  and  in  <£50.  for  money 
found  to  be  due,  from  the  defendant  to  the  plaintiff,  on  an  account 
therein  stated  between  them;  and  the  defendant  afterwards,  on  the  day 
and  year  aforesaid,  in  consideration"  &:-c.  promised  &-c.  Upon  the 
argument  of  a  demurrer  to  the  declaration,  it  was  admitted  that  accor- 
ding to  Lane  v.  Thelwell,  1  M.  &  W.  140.  Tyrwh.  &  Gr.  352.  the 
statement  of  time  was  sufficient  as  to  the  goods  sold  and  delivered,  but 
it  was  insisted  that  the  time  of  stating  the  account  ought  to  have  been 
more  specifically  pointed  out,  and  Ferguson  v.  Mitchell,  2  Cro.  &l  M. 
687.  Tyrwh.  &  Gr.  179.  was  relied  on.  Lord  Denman,  C.  J.  after 
stating  that  the  judgment  of  the  court  must  be  against  the  demurrer  as 
being  too  large,  said  he  could  not  himself  see  that  the  count  was  bad. 

In  Bingley  v.  Durham,  8  Ad.  &  E.  775.  35  Eng.  Com.  Law  Rep. 
521.  the  declaration  was  in  debt,  and  stated  the  defendant  to  be  indebted 
to  plaintiff  in  ,£40.  "  for  money  found  to  be  due,  from  the  defendant  to 
the  plaintiff,  on  an  account  before  then  stated  between  them."  Defen- 
dant demurred,  assigning  for  cause  that  the  count  does  not  mention  the 
specific  time  or  any  particular  day  on  which  the  account  is  supposed  to 
have  been  stated.  He  relied  on  Ferguson  v.  Mitchell  before  cited,  and 
Spyer  v.  Thehcell,  2  Cro.  M.  &  R.  692.  S.  C  Tyr.  &  Gr.  191.  Lord 
Denman,  C.  J.  said,  "In  those  cases,  all  notice  of  time  was  omitted. 
Here  the  account  is  said  to  have  been  '  before  then  stated.'  We  think 
that  the  distinction  is  sufficient  and  that  the  plaintiff  must  have 
judgment," 


Declarations  in  asmmjpsit.  501 

Consideration  must  be  set  out  to  support  the  promise. — A  con- 
sideration for  the  promise  must  be  set  out,  and  the  consideration  must 
appear  to  move  from  the  plaintiff  to  the  defendant.  In  Crmo  v.  Rogers, 
1  Str.  592.  the  plaintiff  declared  that  whereas  one  J.  H.  was  indebted 
to  the  plaintiff  in  £  70.,  upon  a  discourse  between  this  H.  and  the  de- 
fendant it  was  agreed  that  the  defendant  should  pay  the  plaintiff's  debt 
of  £  70.  and  that  H.  should  make  the  defendant  a  title  to  a  house. 
Then  he  averred  that  H.  was  always  ready  to  perform  his  part  of  the 
agreement,  and  that  the  defendant,  in  consideration  thereof,  promised  to 
pay  the  plaintiff.  Upon  demurrer,  it  was  insisted  that  there  was  no  con- 
sideration moving  from  the  plaintiff  to  support  this  promise.  And  ac- 
cordingly, the  court  held  the  plaintiff  was  a  stranger  to  the  considera- 
tion, and  gave  judgment  for  the  defendant. 

More  recently,  in  Price  v.  Easton,  4  Barn.  &  Ad.  433.  24  Eng, 
Com.  Law  Rep.  96.  the  declaration  stated  that  one  W.  P.  was  indebted 
to  the  plaintiff  in  £  13.,  and  the  defendant,  in  consideration  thereof,  and 
in  consideration  that  the  said  W.  P.  at  the  request  of  the  defendant,  had 
undertaken  and  faithfully  promised  the  defendant  to  work  for  him,  at 
certain  wages  agreed  upon  between  them,  and  in  consideration  of  W. 
P.  leaving  the  amount  which  might  be  earned  by  him  in  the  defendant's 
hands,  he,  the  defendant,  undertook  and  promised  to  pay  the  plaintiff  the 
sum  of  <£13.  Averment  that  W.  P.  did  work  for  the  defendant  and 
earned  a  large  sum  of  money,  and  left  the  same,  in  his,  the  defendant's 
hands.  Breach,  non-payment  to  the  plaintiff  of  £  13.  The  plaintiff, 
having  obtained  a  verdict,  a  rule  nisi  was  obtained  for  arresting  the 
judgment  on  the  ground  that  the  plaintiff  was  a  mere  stranger  to  the 
consideration.  This  rule  was  made  absolute,  lord  Denman,  C.  J.  saying 
the  declaration  could  not  be  supported,  as  it  did  not  shew  any  conside- 
ration for  the  promise  moving  from  the  plaintiff  to  the  defendant. 

Though  the  promise  be  in  writing,  and  the  writing  is  specially  de- 
clared on,  still  a  consideration  for  the  promise  must  appear  on  the  face 
of  the  declaration.  Beverleys  v.  Holmes,  4  Munf  95.  3Ioseley  v.  Jones, 
5  Munf  23. 

The  precedents  of  declarations,  upon  mutual  promises,  where  one  is 
the  consideration  of  the  other,  uniformly  state  the  promises  to  have  been 
made,  at  the  same  time;  that  when  the  plaintiff  had  promised,  the  de- 
fendant, in  consideration  thereof,  then  and  there,  assumed  upon  himself. 
In  Livingston  v.  Rogers,  1  Caines's  Rep.  584.  which  was  an  action  upon 
an  agreement,  to  deliver  and  receive  stock,  the  three  first  counts  stated 
that,  in  consideration  the  plaintiff  had,  at  the  defendant's  request,  promised 
to  perform  his  part,  the  defendant,  aftericards,  to  wit,  on  the  same  day 
promised.  It  thus  appeared  that  the  promise  of  the  plaintiff  was  ante- 
cedent to  that  of  the  defendant.  The  promise  of  the  defendant  not 
being  made  at  the  same  time  with  that  of  the  plaintiff,  but  at  a  subse- 
quent period,  the  plaintiff's  promise,  at  the  time  it  was  made,  was  with- 
out consideration,  and  therefore  void.  Being  void,  it  was  not  sufficient 
to  support  the  promise  of  the  defendant. 

Where  the  consideration  is  laid  as  past  and  executed,  it  must  be  laid 
to  have  been  done  upon  request.  In  Parl<er  v.  Crane,  6  Wend.  647. 
the  consideration  stated  was  the,  sale  and  conveyance  on  a  day  which 
was  then  past,  of  the  possession  of  50  acres  of  land ;  but  it  was  not 


502  Declarations  in  assumpsit. 

stated  that  the  possession  was  sold,  at  the  request  of  the  defendant.  The 
declaration  was  adjudged  bad. 

Promise  jiust  be  stated. — In  assumpsit,  the  defendant's  underta- 
king and  promise  constituting  the  gist  of  the  action,  the  declaration 
must  state  that  the  defendant  undertook  and  promised.  Lee  v.  Welch,  2 
Str.  793.  Or  it  must  state  something  equivalent  thereto.  Avery  v.  In- 
habitants of  Tyringham,  3  Mass.  Rep.  160.  Candler  Sfc.  v.  Rossiter, 
10  Wend.  487.  And  the  undertaking  and  promise,  (or  what  is  equiva- 
lent thereto,)  must  be  directly  averred.  Winston's  ex' or  v.  Francisco, 
2  Wash.  187.     Sexton  v.  Holmes,  3  Munf.  566. 

In  Cooke  V.  Sims,  2  Call  39.  the  first  count  in  the  declaration  charged 
that  the  defendant  made  a  certain  writing  which  it  set  forth  in  hcpc  verba, 
and  the  writing  so  set  forth  contained  a  promise  by  the  defendant  that 
on  receiving  a  certain  sum  of  the  funded  debt  of  the  United  States, 
he  would  pay  the  plaintiff  a  certain  sum  of  money,  but  the  promise  was 
no  otherwise  alleged  in  this  count.  The  court  of  appeals  considered 
the  cases  as  proving  that,  independent  of  the  act  of  parliament  in  Eng- 
land and  of  our  act  of  assembly,  (neither  of  which  apply,)  an  action  of 
assumpsit  will  not  lie  on  a  promissory  note  singly,  without  adding  a  pro- 
mise.    The  count  was  therefore  adjudged  bad. 

The  case  of  Wooddy  v.  Flournoy,  6  Munf  306.  is  decided  upon  the 
same  principle.  The  second  count  in  this  case  was  held  to  be  defec- 
tive, because  it  did  not  aver  that  the  defendants  promised,  but  only  set 
out  the  writing  in  which  the  promise  was  alleged  to  be  contained. 

Breach  of  the  promise  must  be  alleged. — A  declaration  upon  an 
assumpsit  to  pay  money,  is  insufficient  to  maintain  the  action,  if  it 
merely  charge  the  assumpsit,  but  do  not  allege  a  breach  thereof  Where 
there  are  three  counts  alleging  promises  to  pay  three  several  sums  of 
money,  and  there  is  no  breach  laid  at  the  end  of  the  first  or  second,  but 
at  the  end  of  the  third  it  is  alleged  that  the  defendant  has  not  paid  the 
said  sum  of  money,  or  any  part  thereof,  such  allegation  can  refer  only 
to  the  tJiird  count,  and  the  first  and  second  counts  will  be  regarded  as 
defective.  To  make  the  breach  extend  to  the  three  counts,  the  defen- 
dant should  be  charged  with  having  failed  to  pay  the  several  sums  of 
money  aforesaid,  and  every  part  thereof.  Ellis  v.  Turner's  adm'r,  5 
Munf  196. 

Unnecessary  length,  in  declarations,  now  discountenanced  in 
England. — By  a  general  rule  of  the  judges  of  England,  adopted  in 
1831,  it  is  recited  that  declarations  in  actions  upon  bills  of  exchange, 
promissory  notes,  and  the  counts  usually  called  the  common  counts,  oc- 
casion unnecessary  expense  to  parties,  by  reason  of  their  length,  and  the 
judges,  considering  that  the  same  may  be  drawn  in  a  more  concise  form, 
have,  for  the  prevention  of  such  expense,  prepared  a  schedule  of  forms 
and  directions,  and  adopted  regulations  to  prevent  declarations  for  any 
of  the  demands  mentioned  in  the  schedule,  or  demands  of  a  like  nature, 
from  exceeding  in  length  such  of  the  forms  set  forth  or  directed  in  the 
schedule,  as  may  be  applicable  to  the  case.  The  schedule  of  forms  and 
directions,  so  adopted,  is  published  in  the  20th  volume  of  English  Com- 
mon Law  Reports,  p.  324  to  328.  and  in  4  Bligh's  Par.  Cas.  N.  S.  p. 
585  to  592.  The  forms  of  the  counts  so  prescribed  upon  bills  of  ex- 
change, and  the  common  counts  also,  are  hereinafter  made  use  of,  under 
their  appropriate  heads. 


Declarations  in  assumpsit.  503 

1.   On  an  inland  Mil  of  exchange  against  the  acceptor  hy  the  drawer y 
being  also  payee. 

After  the  usual  commencement  of  "  A.  B.  complains  of  C.  D.  being 
in  custody  &.c.  of  a  plea  of  trespass  on  the  case,"  the  form  prescribed 
by  the  judges  of  England  is  as  follows  : 

For  that  whereas  the  plaintiff,  on  the day  of ,  in 

the  year  of  our  lord ,  in  the  county  of ,  made  his  bill 

of  exchange  in  writing,  and  directed  the  same  to  the  defendant, 

and  thereby  required  the  defendant  to  pay  to  the  plaintiff 

dollars, after  the  date  (or  after  the  sight)  thereof,  which  pe- 
riod has  now  elapsed  ;  and  the  defendant,  then  and  there,  ac- 
cepted the  said  bill,  and  promised  the  plaintiff  to  pay  the  same, 
according  to  the  tenour  and  effect  thereof,  and  of  his  said  accep- 
tance thereof,  but  did  not  pay  the  same  when  due. 

2.  Against  the  a/:ceptor  hy  the  draicer^  not  being  the  payee. 

The  form  prescribed  by  the  judges  of  England  is  as  follows  : 

As  i?i  No.  1.  to — and  thereby  required  the  defendant  to  pay  to 

E.  F.  or  order dollars, after  the  date  (o?-  after  the  sight) 

thereof,  which  period  has  now  elapsed,  and,  then  and  there,  de- 
livered the  same  to  the  said  E.  F.,  and  the  said  defendant,  then 
and  there,  accepted  the  same,  and  promised  the  plaintiff  to  pay 
the  same,  according  to  the  tenour  and  effect  thereof,  and  of  his 
acceptance  thereof,  yet  he  did  not  pay  the  amount  thereof,  al- 
though the  said  bill  was,  on  the  day  when  it  became  due,  there 
presented  to  him  ;  and  thereupon  the  same  was,  then  and  there, 
returned  to  the  plaintiff;  of  all  which  the  defendant,  then  and 
there,  had  notice. 

3.  Against  the  acceptor  by  the  payee,  not  being  the  drawer. 
For  that  whereas  one  E.  F.  on  &c.  (as  in  No.  1.) 

4.  Against  the  acceptor  by  the  endmsee. 

The  form  prescribed  by  the  judges  of  England  is  as  follows : 

For  that  whereas  one  E.  F.  on  &c.  (as  in  No.  1.  to)  and  thereby 
required  the  defendant  to  pay  to  the  said  E.  F.  {or  to  G.  H.)  or 

order dollars after  date  {or  after  sight)  thereof, 

which  period  is  now  elapsed,  and  the  defendant,  then  and  there, 
accepted  the  said  bill,  and  the  said  E.  F.  {or  G.  H.)  then  and 


504  Declarations  in  assumpsit. 

there,  endorsed  the  same  to  the  plaintiff,  {or  and  the  said  E.  F. 
{or  G.  H.)  then  and  there  endorsed  the  same  to  L  K.  and  the 
said  I.  K.  then  and  there,  endorsed*  the  same  to  the  plaintiff,) 
of  all  which  the  defendant,  then  and  there,  had  due  notice,  and, 
then  and  there,  promised  the  plaintiff  to  pay  the  amount  thereof, 
according  to  the  tenour  and  effect  thereof,  and  of  his  acceptance 
thereof,  yet  he  did  not  pay  the  same  although  the  said  bill  was, 
on  the  day  when  it  became  due,  there  presented  to  him. 

*  Where  the  action  against  the  acceptor  is  not  brought  by  the  payee, 
but  by  a  subsequent  holder,  it  is  indispensable  for  it  to  appear,  on  the 
face  of  the  declaration,  that  such  holder  has  title  hy  endorsement.  In 
Cunliffe  S^c.  v.  Whitehead,  3  Bingh.  N.  C.  828.  32  Eng.  Com.  Law 
Rep.  343.  the  declaration  stated  that  W.  Fraser,  to  whose  order  the 
bill  was  payable,  endorsed  the  same  to  Messrs.  Salomonson,  Fraser  Sf  Co. 
and  that  they  delivered  the  same  to  the  plaintiffs.  Upon  a  demurrer  to 
the  declaration,  judgment  was  given  for  the  defendant.  Tindal,  C.  J. 
said,  "  The  endorsement  by  Fraser,  to  Salomonson,  Fraser  4*  Co.  with- 
out an  endorsement  from  the  latter  to  the  plaintiffs,  does  not  give  the 
plaintiffs  a  right  to  sue  in  this  action.  They  cannot  derive  title  from 
deliver y  alone." 

5.  Against  the  drawer  by  payee  on  non-acceptance. 

The  form  prescribed  by  the  judges  of  England  is  as  follows  : 

For  that  whereas  the  defendant  on  &c.  (as  in  No.  1.  to)  and 
directed  the  same  to  J.  K.,  and  thereby  required  the  said  J.  K. 

to  pay  to  the  plaintiff  dollars after  the  date  {or 

after  the  sight)  thereof,  and,  then  and  there,  delivered  the  same 
to  the  said  plaintiff,  and  the  same  was,  then  and  there,  presented 
to  the  said  J.  K.  for  acceptance,  and  the  said  J.  K.,  then  and 
there,  refused  to  accept  the  same ;  of  all  which  the  defendant, 
then  and  there,  had  due  notice. 

The  promise  and  breach  will  be  alleged  as  stated  hereafler  in  No.  44. 

6.  Against  the  drawer  by  endorsee  on  non-acceptance. 

The  form  prescribed  by  the  judges  of  England  is  as  follows : 

As  in  No.  5.  to — required  the  said  J.  K.  to  pay  to  the  order  of 

the  said  defendant  dollars, after  the  sight  {or  after 

the  date)  thereof,  and  the  said  defendant,  then  and  there,  endor- 
sed the  same  to  the  plaintiff,  {or  to  L.  M.  and  the  said  L.  M., 
then  and  there,  endorsed  the  same  to  the  plaintiff,)  and  the  same 
was,  then  and  there,  presented  to  the  said  J.  K.  for  acceptance, 


Declarations  in  assumpsit.  605 

and  the  said  J.  K.,  then  and  there,  refused  to  accept  the  same ; 
of  all  which  the  defendant,  then  and  there,  had  due  notice. 

The  promise  and  breach  will  be  alleged  as  stated  hereafter  in  No.  44. 

7.  Against  first  endorser  hy  an  endorsee  on  non-acceptaTicc. 

The  form  prescribed  by  the  judges  of  England  is  as  follows : 

For  that  whereas  one  N.  O.  on  &c.  (as  in  No.  5.  to)  required 
the  said  J.  K.  to  pay  to  the  defendant  or  order  •  dollars, 

after  the  date  {or  after  the  sight)  thereof,  and,  then  and 

there,  delivered  the  same  to  the  defendant,  and  the  defendant, 
then  and  there,  endorsed  the  said  bill  to  &c.  (as  in  No.  6.) 

The  promise  and  breach  will  be  alleged  as  stated  hereafter  in  No,  44, 

8.  Against  second  or  third  endorser  by  his  endorsee  on  non-acceptaTice, 

The  form  prescribed  by  the  judges  of  England  is  as  follows : 

For  that  whereas  one  iV.  O.  on  &c.  (as  in  No.  5.  to)  required 

the  said  J.  K.  to  pay  to  his  order dollars, after  the  date 

{or  after  the  sight)  thereof,  and  the  said  N.  O.,  then  and  there, 
endorsed  the  said  bill  to  the  defendant,  (or  to  L.  M.,  and  the  said 
L.  M.,  then  and  there,  endorsed  the  same  to  the  defendant,)  and 
the  defendant,  then  and  there,  endorsed  the  same  to  the  plaintiff, 
and  the  same  was  &c.  (as  in  No.  6.) 

The  promise  and  breach  will  be  alleged  as  stated  hereafter  in  No.  44. 

9.  Against  drawer  or  endorser,  where  action  is  brought  after  expira- 

tion of  time  for  jjayment. 

The  directions  of  the  judges  of  England  are  as  follow : 
If  the  bill  be  payable  at  any  time  after  date,  insert  immediately  after 
the  words  denoting  the  time  appointed  for  payment,  the  following  words, 
viz  :  "  which  period  has  now  elapsed;"  and  instead  of  averring  that  the 
bill  was  presented  to  the  drawee  for  acceptance,  and  that  he  refused  tq 
accept  the  same,  allege  that  the  drawee,  (naming  him,)  "  did  not  pay 
the  said  bill,  although  the  same  was  there  presented  to  him  on  the  day  when 
it  became  due." 

If  the  bill  be  payable  at  any  time  after  sight,  insert  after  the  words 
denoting  the  time  appointed  for  payment,  the  following  words,  viz  : 
"  and  the  said"  drawee,  (naming  him,)  then  and  there,  sate  and  accepted 
the  same,  and  the  said  period  has  now  elapsed;"  and,  instead  of  alleging 
that  the  bill  was  presented  for  acceptance  and  refused,  allege  that  the 
64 


506  Declaratiom  iji  assumpsit. 

drawee  (naming  him)  "  did  not  pay  the  said  bill,  although  the  same  was 
presented  to  him  on  the  day  when  it  became  due." 

In  Henry  Sfc.  v.  Burbidge,  3  Bingh.  N.  C.  501.  32  Eng.  Com.  Law 
Rep.  223.  the  first  count  of  the  declaration  was  as  follows : 

For  that  whereas  the  defendant,  on  the  15th  of  March,  1836, 
made  his  bill  of  exchange  in  writing,  and  directed  the  same  to 
one  /.  P.  and  thereby  required  the  said  J.  P.  to  pay  to  the  or- 
der of  the  defendant  £  29.  18.  10.,  four  months  after  the  date 
thereof,  which  period  has  now  elapsed  ;  and  the  defendant  then 
endorsed  the  said  bill  to  the  plaintiffs ;  and  the  said  J.  P.  did 
not  pay  the  said  bill,  although  the  same  was  presented  to  him 
on  the  day  when  it  became  due,  whereof  the  defendant  then 
had  notice. 

To  this  count  there  was  a  demurrer,  assigning  for  cause  that  it  con- 
tained no  promise  by  the  defendant  to  pay  the  money.  Martin,  contra, 
relied  on  the  opinion  of  Holt,  C.  J.  in  Starkey  v.  Cheeseman,  1  Salk. 
128.  and  also  upon  the  circumstance  that  in  an  action  against  the  ac- 
ceptor, it  has  been  held  unnecessary  to  allege  a  promise.  The  promise, 
he  said,  is  implied  to  arise  after  the  dishonour  of  the  bill,  and  it  is  never 
proved  at  the  trial.  Tindal,  C.  J.  said,  "  Nor  is  it  in  an  action  for 
goods  sold  and  delivered.  And  I  do  not  agree  that  an  action  against 
the  drawer  rests  upon  the  same  grounds  as  an  action  against  the  accep- 
tor of  a  bill.  The  acceptance  constitutes,  in  effect,  a  promise  to  pay ; 
but  in  this  action  against  the  drawer,  the  bill  is  not  a  debt,  but  causes 
by  im.plication  of  law,  a  promise  to  pay,  if  the  acceptor  fails  to  do  so; 
which  promise  should  be  alleged  in  the  declaration.  Mr.  justice  Bay- 
ley  only  says,  *  This  clause  is  unnecessary  in  an  action  against  either 
the  acceptor  of  a  bill  or  the  maker  of  a  note ;  and  it  may  be  doubted, 
whether  it  is  essential  in  any  other,'  Bayley  on  bills,  408.  And  though, 
where  the  objection  was  not  taken  till  after  judgment.  Holt,  C.  J.  said 
the  drawing  was  a  promise,  he  did  not  decide  that  where  the  objection 
is  pointed  out  on  special  demurrer,  the  plaintiff  is  not  bound  to  allege  a 
promise."  Park,  J.  and  Vaughan,  J.  concurred.  And  judgment  was 
given  for  the  defendant. 

The  declaration  in  Henry  S^c.  v.  Burbidge,  appears  to  be  in  the  form 
prescribed  by  the  judges  of  England,  so  far  as  the  form  is  peculiar  to 
the  particular  case.  The  pleader  failed  to  notice  that  the  english  judges, 
in  stopping  the  particular  form  where  they  did,  supposed  that  in  every 
declaration  there  would  be  besides  the  special  count,  some  common 
counts,  and  they  framed  a  general  conclusion  applicable  both  to  the 
special  and  the  common  counts.  In  this  general  conclusion,  there  is 
the  allegation  of  a  promise  and  of  the  breach  thereof.  See  the  form  of 
it  in  No.  44. 


Declarations  in  assumpsit.  507 

10.  Against  drawer  or  endorser  of  hill  protested  fm-  non-acceptance 
or  no7i-payment,  wJier'e  damages  are  claimed  under  the  Virginia 
statute. 

The  statute  of  Virginia  provides  that  a  bill  of  exchange  or  draft  for 
money  in  the  nature  of  a  bill  of  exchange,  drawn  by  any  person  or  per- 
sons residing  in  this  state,  on  any  person  or  persons  in  the  United  States, 
or  in  the  territories  thereof,  or  in  the  district  of  Columbia,  shall  be  con- 
sidered as  an  inland  bill ;  and  if  such  bill  or  draft  shall  be  protested  for 
non-acceptance  or  non-payment,  the  drawer  or  endorser  shaJl  be  subject 
to  the  payment  of  one  per  centum  damages  thereon,  and  the  bill  or  draft 
shall  carry  an  interest  of  six  per  centum  per  annum  from  the  date  of  the 
protest,  until  the  money  therein  drawn  for  shall  be  fully  satisfied  and 
paid.     1  R.  C.  1819,  p.  483.  §  1. 

The  count  which  follows  is  against  an  endorser.  It  conforms  to  the 
rule  of  the  english  judges,  as  near  as  may  be,  inserting  in  it  what  seems 
proper  to  bring  the  case  within  the  statute  of  Virginia. 

For  that  whereas  on  the  20th  day  of  January  1834,  at  Rich- 
mo7id,  to  wit,  in  the  said  county  of  H.,  W.  A.,  J.  T.  and  T.  G. 
T.  then  residing  in  the  state  of  Virginia^  and  trading  as  partners 
lender  the  firm  of  A.  T.  ^  Co.,  made  their  bill  of  exchange  in 
writing  and  subscribed  thereto  the  name  of  their  said  firm,  and 
directed  the  said  bill  to  /.  W.  Sf  Co.  by  the  name  and  addition 
of  J.  W.  Sf  Co.  New  York,  (the  said  New  York  being  a  city  in 
the  United  States,  and  the  said  J.  W.  if  Co.  being  persons  residing 
in  the  United  States,)  and  thereby  required  the  said  J.  W.  6f  Co. 
to  pay,  to  the  order  of  the  said  defendant,  $  535,  one  hundred 
and  eighty  days  after  the  date  thereof;  and  the  said  defendant, 
then  and  there,  endorsed  the  said  bill  to  the  plaintiff,  and  sub- 
scribed his  name  to  the  said  endorsement. 

If  p)-esented  for  acceptance,  say — and  afterwards,  on   the 

day  of ,  at  New  York  aforesaid,  to  wit,  in  the  said  county 

of  H.  the  said  bill  was  presented  to  the  said  J.  W.  ^  Co.  for  ac- 
ceptance, and  the  said  J.  W.  ^Co.  then  and  there,  refused  to  ac- 
cept the  same. 

If  presented  for  payment,  say — and  the  said  J.  W.  &f  Co.  did 
not  pay  the  said  bill,  although  the  same  was  presented  to  them, 
on  the  day  when  it  became  due. 

And  then,  i?i  either  case,  proceed  as  follows : 

And  the  said  bill  was  thereupon  duly  protested  for  non-ac- 
ceptance {or  non-payment)  of  all  which  the  defendant,  then  and 
there,  had  due  notice;  and  the  said  defendant  afterwards  &c. 
in  consideration  of  the  premises,  then  and  there,  promised  to 
pay  to  the  plaintiff  on  request  the  said  money,  with  one  per  centum 
damages  thereon,  and  interest  on  the  said  money  at  the  rate  of 
six  per  centum  per  annum,  from  the  date  of  the  said  protest,  to 


50S  Declarations  in  assumpsit. 

wit,  from  the day  of until  llie  said  money  should 

be  paid.     Yet  he  hath  disregarded  his  promise  and  hath  not 
paid  the  said  money,  damages  and  interest,  or  any  part  thereof. 

11.  Against  drawer  by  an  acceptor  who  accepted  /or  accommodation 

of  drawer. 

For  that  whereas  heretofore,  to  wit,  on  the  fourteenth  day  of 
August  1828,  at  New  York,  to  wit,  at  the  county  of  if.  aforesaid, 
in  consideration  that  the  said  plaintiff,  for  the  accommodation, 
and  at  the  special  instance  and  request,  of  the  said  C.  B.  W.y 
would  accept  two  certain  bills  of  exchange  in  writing,  bearing 
date  the  day  and  year  aforesaid,  and  made  and  drawn  by  the  said 
C.  B.  W.  on  the  plaintiff,  by  the  name  and  address  of  •'  Mr.  J. 
W. — New  York,"*^  by  one  of  which  bills  the  said  C.  B.  W.  re- 
quired the  said  plaintiff,  four  months  after  the  date  thereof,  to 
pay  to  the  order  of  mr.  W.  W.  jr.  $902.89  cts.  as  for  value  re- 
ceived, and  by  the  other  of  which  bills  the  said  C.  B.  W.  re- 
quired the  said  plaintiff,  six  months  after  the  date  thereof,  to 
pay  to  the  order  of  W.  W.jr.  $  902.89  cts.  as  for  value  received, 
he  the  said  C.  B.  TV.  undertook,  and,  then  and  there,  faithfully 
promised  the  said  plaintiff,  to  provide  money  for  the  payment 
of  the  said  two  bills  of  exchange,  when  the  same  should  become 
payable,  and  to  indemnify  and  save  harmless  the  said  plaintiff 
from  any  loss  or  damages,  for,  or  by  reason  of,  his  acceptance 
of  the  said  two  bills  of  exchange  as  aforesaid.  And  the  said 
plaintiff  avers  that  he,  confiding  in  the  said  promise  and  under- 
taking of  the  said  C.  B.  W.  did,  afterwards,  to  wit,  on  the  said 
fourteenth  day  of  August  1828,  at  New  York,  to  wit,  at  the 
county  of  H.  aforesaid,  accept  the  said  two  bills  of  exchange ; 
and  the  same,  being  so  accepted,  were,  then  and  there,  delivered 
to  the  said  W.  W.jr.,  and  the  said  two  bills  have  long  since  be- 
come due  and  payable,  to  wit,  at  H.  aforesaid  ;  yet  the  said  C. 
B.  W.,  not  regarding  his  said  promise  and  undertaking,  did  not, 
nor  would,  provide  money  for  the  payment  of  ihfe  said  two  bills 
of  exchange,  when  the  same  became  due  and  payable,  nor  in- 
demnify, or  save  harmless,  him  the  said  plaintiff,  from  any  loss 
or  damage  for,  or  by  reason  of,  his  acceptance  of  the  said  two 
bills  of  exchange  as  aforesaid,  but  wholly  neglected  and  refused 
so  to  do.  By  reason  and  in  consequence  whereof,  the  said 
plaintiff,  as  such  acceptor  of  the  said  two  bills  of  exchange,  as 
aforesaid,  afterwards,  to  wit,  on  the  seventeenth  day  of  Decem- 
ber 1828,  at  New  York,  to  wit,  at  the  county  of  H.  aforesaid, 
was  called  upon,  and  forced  and  obliged,  to  pay,  and  did,  then 
and  there,  pay  to  the  holder  of  the  first  mentioned  bill  of  ex- 
change, the  said  sum  of  $  902.89  cents,  in  the  said  first  men- 


Declarations  in  asstimjjdt.  509 

tioned  bill  of  exchange  specified,  and  afterwards,  to  wit,  on  the 
seventeenth  day  of  February  1829,  at  New  YorJc,  to  wit,  at  the 
said  count}'  of  H.  was  called  upon,  and  forced,  and  obliged,  to 
pay,  and  did,  then  and  there,  pay  to  the  holder  of  the  said  bill 
of  exchange,  secondly  mentioned,  the  said  sum  of  $902.89  cts. 
specified  in  the  said  bill  of  exchange  secondly  above  mentioned  ; 
which  two  sums  of  $  902.89  cts.  amount  in  the  whole  to  a  large 
sum  of  money,  to  wit,  the  sum  of  $  1805.78  cts.  and  by  means 
of  the  said  premises  the  said  plaintiff  hath  been,  and  is,  dam- 
nified to  the  amount  thereof,  to  wit,  at  the  county  of  H.  afore- 
said. 

11.  Against  the  acceptor  of  a  foreign  bill. 

Counts  against  acceptors  of  foreign  bills  may  be  drawn  according  to 
the  principle  of  the  counts  against  acceptors  of  inland  bills,  with  the 
necessary  variations. 

12.   On  a  promissory  note,  payable  in  bank  notes  or  other  articles  of 
jluctuating  value. 

Lewis  V.  Long,  3  Munf.  136.  was  on  a  writing  obligatory,  "  to  be 
paid  in  trade,  such  as  is  to  be  had,  deer  skins,  furs,  flax,  snake  root, 
beef,  pork,  bacon"  &c.  Although  it  was  thus  stipulated,  in  the  obliga- 
tion, that  deer  skins  and  other  articles  would  be  received  in  payment, 
yet  an  action  of  debt  was  brought  for  the  money.  See  opn.  of  Roane, 
J.  p.  151. 

In  the  preceding  case,  the  promiser  was  to  pay  in  articles  of  fluctuating 
value,  and  the  quantity  of  those  articles  which  he  would  have  to  pay, 
depended  upon  the  price  of  the  articles  at  the  time  of  payment.  He  was 
to  pay  in  them,  what  would  be  equal  in  value,  at  that  time,  to  the  sum  of 
money  mentioned  in  the  obligation. 

But  if  the  quantity  of  the  articles  to  be  delivered  be  fixed,  so  that,  at 
the  day  of  payment,  that  quantity  of  such  articles  may  fall  short  of  the 
debt,  the  value  of  that  quantity  is  what  the  creditor  is  to  recover,  and  the 
mode  of  recovery  is  not  by  action  of  debt  but  by  an  action  of  covenant 
or  assumpsit. 

In  Beirne  Sfc.  v.  Dunlap,  8  Leigh  514.  debt  was  brought  on  a  writing 
obligatory,  by  which  the  obligors  promised  to  pay  to  the  obligee  on  or 
before  a  specified  day,  the  sum  of  813  dollars  79  cents,  in  notes  of  the 
United  States  bank,  or  either  of  the  Virginia  banks.  This  was  consi- 
dered an  engagement  to  pay  so  many  of  such  bank  notes  as,  on  their 
face,  would  nominally  make  the  sum  of  $  813.79  cts.  And  there  being 
no  difference  between  bank  paper  and  any  other  commodity,  the  value 
of  the  notes  on  the  day  of  payment  was  the  criterion  by  which  to  ascer- 
tain the  damages.  Debt  not  being  the  proper  action  to  recover  such 
damages,  the  demurrer  of  the  defendants  to  the  plaintiff"'s  declaration 
was  sustained. 


510  Declarations  in  asstimpsit. 

W.  S.  D.  complains  of  the  /.  11.  and  K.  company  (who  have 
been  duly  summoned)  of  a  plea  of  trespass  on  the  case.  And 
thereupon  the  said  plaintiff  saith,  that  heretofore,  to  wit,  on  the 
first  day  of  May  1840,  at  the  said  city  of  R.  the  defendants 

were  indebted  to  the  plaintiff  in  $ for  the  price  and  value 

of  work,  then  and  there,  done,  and  materials  for  the  same  pro- 
vided, by  the  plaintiff  for  the  defendants,  at  their  request,  and  the 
said  defendants,  in  consideration  of  the  premises,  made  fifty- 
nine  promissory  notes  in  writing,  with  the  names  signed  to  the 
same  of  W.  B.  C.  as  secretary  and  of  J.  M.  H.  as  president  pro 
tern,  (who  were  thereunto  duly  authorized),  eighteen  of  which 
notes  were  for  $  20  each,  eighteen  others  for  $  15  each,  and 
twenty-three  others  for  $  10  each,  and  by  each  of  the  said  18 
notes  first  mentioned,  the  said  defendants,  then  and  there,  pro- 
mised to  pay  six  months  after  the  date  thereof,  for  value  re- 
ceived, $  20  to  the  order  of  R.  T.  L.  with  interest  until  due,  in 
current  notes,  at  their  office  in  Richmond,  Virginia,  and  by  each 
of  the  said  18  notes  secondly  mentioned,  the  said  defendants, 
then  and  there,  promised  to  pay  six  months  after  the  date  there- 
of, for  value  received,  $  15  to  the  order  of  the  same  jR.  T.  L. 
with  interest  until  due,  in  current  notes,  at  their  same  office,  and 
by  each  of  the  said  23  notes,  the  said  defendants,  then  and 
there,  promised  to  pay,  six  months  after  the  date  thereof,  for 
value  received,  $  10  to  the  order  of  the  same  R.  T.  L.  with  in- 
terest until  due,  in  current  notes,  at  their  same  office;  and  the 
said  R.  T.  L.,  then  and  there,  endorsed  each  and  every  one  of 
the  said  fifty  notes  in  writing  to  the  plaintiff,  and  thereby  ordered 
the  sum  mentioned  in  each  of  the  said  notes,  with  interest  as 
therein  specified,  to  be  paid  to  the  plaintiff,  according  to  the 
tenour  and  effect  thereof.  By  means  whereof,  the  said  defen- 
dants, then  and  there,  became  liable  to  pay  to  the  said  plaintiff 
the  sums  mentioned  in  the  said  notes,  with  interest  as  therein 
specified,  according  to  the  tenour  and  effect  thereof,  and  being 
so  liable,  the  said  defendants  in  consideration  thereof,  after- 
wards, to  wit,  on  the  said  first  day  of  May  1840,  at  the  said 
city,  undertook  and,  then  and  there,  faithfully  promised  the  said 
plaintiff  to  pay  him  the  said  plaintiff,  six  months  after  the  date 
thereof,  the  sums  mentioned  in  the  said  notes,  with  interest  as 
therein  specified,  in  current  notes,  at  their  office  aforesaid.  And 
the  plaintiff  avers  that  the  said  defendants  did  not,  six  months 
after  the  date  of  the  said  notes,  pay  to  him  the  said  plaintiff, 
the  sums  mentioned  in  the  said  notes,  with  interest  as  therein 
specified,  or  any  part  thereof,  in  current  notes,  at  their  office 
aforesaid,  according  to  the  tenour  and  effect  of  the  said  notes, 
but  to  pay  the  same,  and  every  part  thereof,  in  such  current 
notes,  wholly  failed  and  made  default.     And  the  said  plaintiff 


Declarations  in  assumpsit.  611 

further  avers  that  the  current  notes  in  which  the  sums  men- 
tioned in  the  said  promissory  notes,  might  and  ought  to  have 
been  paid,  were,  when  the  same  ought  to  have  been  paid,  ac- 
cording to  the  tenour  and  effect  of  the  said  promissory  notes, 
and  are  now,  of  great  value,  to  wit,  of  the  value  of  $  860,  and 
the  said  defendants  have  not  paid  to  the  said  plaintiff,  the  value 
of  the  said  current  notes,  or  any  part  thereof.  By  means  of  all 
which  premises,  the  said  plaintiff  is  injured  and  hath  sustained 
damages  to  the  amount  of  S 1000,  and  therefore  he  brings 
suit  &c. 

13.    Upon  the  promise  of  a  person  appearing  as  obligor  in  a  bond,  to 
pay  the  same  to  on£  taking  a  transfer  thereof  from  the  obligee. 

An  action  of  assumpsit  may  be  maintained  upon  the  promise  of  an 
an  obligor  to  pay  the  amount  of  his  bond  to  a  third  person,  if  such  per- 
son would  accept  a  transfer  thereof.  It  was  so  decided  in  Cleaton  v. 
Chambliss,  6  Rand.  86.  In  that  case  the  obhgors  in  a  bond  proposed, 
for  valuable  consideration,  to  transfer  the  same  to  a  third  person,  and, 
after  this  proposition,  the  latter  had  a  conversation  with  one  of  the  obli- 
gors, in  which  that  obligor  promised  him  that  if  he  would  take  the  bond 
from  the  obligee,  he  the  obligor  would  pay  him  the  sum  of  money  spe- 
cified in  the  same,  when  it  should  become  due.  The  person  to  whom 
the  promise  was  made,  took  a  transfer  of  the  bond  without  any  written 
assignment,  and  afterwards  brought  suit  in  the  name  of  the  obligee,  for 
his  own  benefit,  on  the  bond.  In  that  suit,  non  est  factum  was  pleaded, 
and  a  verdict  and  judgment  rendered  for  the  defendant.  An  action  of 
assumpsit  was  then  brought  upon  the  promise  made  before  the  transfer. 
The  declaration  set  forth  the  foregoing  facts.  It  averred  that  the  bond 
had  not  been  altered  from  the  time  of  the  promise  until  the  rendition  of 
the  judgment,  and  concluded  with  charging  the  defendant's  liability. 
Upon  demurrer  to  the  declaration  it  was  held  to  be  good. 

In  the  case  of  Cleaton  v,  Chambliss,  the  argument  was  chiefly  on  the 
demurrer  to  the  sixth,  seventh,  eighth  and  ninth  counts.  All  of  these 
counts  were  considered  good  by  judge  Carr,  and  judge  Coalter  concur- 
red with  him.  Judge  Cabell  concurred  as  to  the  seventh  and  ninth,  but 
dissented  as  to  the  sixth  and  eighth  counts,  which  he  thought  not  good 
on  demurrer. 

The  seventh  and  ninth  counts  were  as  follows : 

And  whereas  also  on  the day  of ,  in  the  year 

1819,  at  yi.  to  wit,  in  the  county  of  G.  aforesaid,  the  said  plain- 
tiff being,  then  and  there,  about  to  trade  for,  purchase  and  re- 
ceive from  a  certain  L.  W.  two  single  bills  or  obligations  pur- 
porting to  be  the  obligations  of  the  said  defendant  and  a  certain 
T.  C.  sen^r  deceased,  and  to  be  due  the  said  L.  TV.  for  the  sum 
of  440  dollars  each,  bearing  date  on  the  30th  day  of  August 
1817,  and  payable  one  on  the  1st  May  1818,  and  the  other  on 


512  Declarations  171  assumpsit. 

the  1st  May  1819,  in  a  certain  conversation,  then  and  there, 
had,  held  and  moved,  between  the  said  plaintiff  and  the  said 
defendant,  he  the  said  defendant  assured  the  said  plaintiff  that 
the  said  sums,  in  the  said  obligations  aforesaid  mentioned,  were 
justly  due,  and  that  if  the  said  plaintiff  would  trade  for,  take, 
purchase  and  receive  the  said  obligations,  of  and  from  the  said 
W.,  that  he  the  said  defendant  would,  well  and  truly,  pay,  to 
the  said  plaintiff,  the  full  amount  of  the  said  obligations,  as  ap- 
pearing due  on  the  face  of  the  said  bills  or  obligations  afore- 
said. And  the  said  plaintiff,  in  fact,  avers  that  he  did,  after- 
wards, at  M.  to  wit,  in  the  county  of  G.  aforesaid,  on  the 

day  of in  the  year  1819,  in  faith  and  reliance  upon  the 

said  assurances,  undertakings  and  assumptions  of  the  said  de- 
fendant, and  at  the  special  instance  and  request  of  the  said  de- 
fendant, and  upon  the  express  agreement,  promise  and  assump- 
tion of  the  said  defendant  to  pay  to  the  plaintiff  the  said  bills, 
bonds  or  obligations  aforesaid,  agreeably  to  the  face  and  appa- 
rent dates  of  the  same,  trade  for,  take,  purchase  and  receive  the 
said  bills,  bonds  or  obligations  aforesaid,  of  the  said  L.  W.  and 
pay  to  him  a  full  and  fair  consideration  for  the  same,  to  wit,  the 
sum  of  440  dollars  with  interest  from  1st  May  1818,  and  the 
sum  of  440  dollars  with  interest  from  the  1st  May  1819,  at  M. 
to  wit,  in  the  county  of  G.  aforesaid,  of  all  which  the  said  de- 
fendant, then  and  there,  had  notice,  to  wit,  at  M.  to  wit,  in  the 

county  of  G.  aforesaid,  and  on  the  day  of in  the 

year  1819.  And  the  said  plaintiff,  in  fact,  avers  that  having 
traded  for,  purchased,  and  received  the  said  bills  or  obligations 
of  the  said  defendant  and  T.  C.  seii'r  deceased,  as  before  men- 
tioned, he  did,  afterwards,  to  wit,  on  the  — • —  day  of  

1821,  institute  actions  of  debt,  upon  the  said  writings  obligato- 
ry, respectively,  in  the  superior  court  of  law,  holden  by  law  for 
the  county  of  G.  in  the  name  of  the  said  L.  W.  for  the  benefit, 
and  at  the  costs  and  charges  of  the  said  plaintiff,  against  the 
said  defendant.  And  the  said  defendant  did,  afterwards,  to  wit, 

on  the day  of in  the  year  1821,  in  the  said  superior 

court  of  law  aforesaid,  to  the  said  actions  of  debt,  on  the  said 
single  bills  aforesaid,  instituted  by  the  said  plaintiff  against  him 
the  said  defendant,  plead  the  plea  of  non  est  factum  to  each  of 
the  said  actions,  and  such  proceedings  were  had,  in  the  said  ac- 
tions, that  afterwards,  to  wit,  on  the day  of  ■  in  the 

year  1821,  the  jury  sworn  to  try  the  issue  joined  in  the  said  ac- 
tions, then  and  there,  to  wit,  in  the  said  superior  court  of  law  for 
the  said  county  of  G.  found  for  the  said  defendant,  and  the  final 
judgment  of  the  said  superior  court  of  law,  was  thereupon  given 
for  the  said  defendant,  in  the  said  actions  of  debt  respectively, 
although  the  said  defendant  had  expressly  promised  and  under- 


Declarations  in  assumpsit.  513 

taken  to  pay,  to  the  plaintiff,  the  said  sums  of  money  appearing 
due  on  the  face  of  the  said  bills  or  obligations,  to  wit,  on  the 

(lay  of in  the  year  1821,  to  wit,  at  the  county  of  G. 

aforesaid,  after  the  said  defendant  had,  then  and  there,  exa- 
mined the  said  bills  or  obligations,  which,  the  plaintiff  avers, 
did,  then  and  there,  purport  to  be  of  the  same  amount  and  dates, 
and  payable  at  the  same  time  aforesaid,  and  were,  in  no  wise, 
afterwards  altered  or  changed. 

And  whereas  also  heretofore,  to  wit,  on  the day  of 

181  ,  and  the  county  of  M.  to  wit,  at  the  county  of  G.  afore- 
said, a  certain  L.  W.  was  indebted  to  the  said  plaintiff  in  a 

large  sum  of  money,  to  wit,  the  sum  of  dollars,  and 

being  so  indebted,  and  being  possessed  of  two  certain  single 
bills  obligatory,  purporting  to  have  been  duly  executed  by  the 
defendant  and  one  T.  C.  senW  his  security,  bearing  date  on  the 
30th  day  of  August  1817,  for  440  dollars  each,  the  one  purport- 
ing to  be  payable  on  the  first  day  of  May  1818,  and  the  other 
purporting  to  be  payable  on  the  first  day  of  May  1819,  the  said 
fV.  proposed  to  the  said  plaintiff  to  transfer  to  him  the  said 
plaintiff^  in  payment  of  the  said  sum  of  money  to  him  due  from 
the  said  W.  and  for  a  further  sum  to  be  paid  by  the  said  plain- 
tiffj  the  said  two  single  bills,  purporting  to  have  been  executed 
by  the  defendant  and  his  security  as  aforesaid,  and  in  a  certain 
conversation,  between  the  plaintiff  and  the  defendant,  of  and 
concerning  the  said  debt,  due  to  the  said  plaintiff  from  the  said 
IV.  and  of  and  concerning  the  said  single  bills  aforesaid,  the  de- 
fendant, then  and  there,  to  wit,  on  the  day  and  year,  and  at  the 
county  aforesaid,  promised  the  plaintiff  that  if  he  the  plaintiff 
would  take  the  said  single  bills  from  the  said  TV.  he  the  defen- 
dant would  pay  to  him  the  plaintiff  the  sums  of  money  speci- 
fied in  the  same,  when  they  should  become  due  as  aforesaid. 
And  the  plaintiff,  in  fact,  saith,  that  he,  confiding  in  the  said 
promises  so  as  aforesaid  by  the  defendant  made,  did  take  and 
obtain  a  transfer  of  the  said  single  bills  from  the  said  JV.  with- 
out any  written  assignment  thereof,  and  did  accept  the  same 
from  the  said  JV.  in  payment  of  the  said  sum  of  money  first 
mentioned  in  this  count  to  have  been  due  from  him  the  said  W. 
to  him  the  said  plaintiff,  and  did  pay  to  the  said  W.  the  further 

sum  of dollars,  as  the  full  value  of  the  said  single  bills, 

which  were  thereupon  transferred  and  delivered  by  the  said  W. 

to  the  plaintiff,  to  wit,  on  the day  of in  the  year 

181  ,  and  at  the  county  aforesaid,  and  the  said  TV.  did,  thereupon 
and  then  and  there,  remove  with  his  effects  from  this  common- 
wealth. And  the  plaintiff  further  saith,  that  afterwards,  to  wit, 
on  the day  of  in  the  year  181  ,  at  the  county  afore- 
said, he  caused  suits  to  be  instituted  in  the  name  of  the  said  TV. 
65 


514  Declarations  in  assumj)sit. 

for  the  benefit  of  the  said  plaintiff  J.  C.  against  the  said  T.  C. 
jr.  upon  each  of  the  said  single  bills,  in  the  superior  court  of 
law  of  the  county  of  G.  and  tiie  said  defendant,  (being  the  de- 
fendant in  the  said  suits,)  did  then  and  there,  plead,  in  due  form 
of  law,  the  pleas  of  no}i  est  factum,  to  wit,  that  the  said  two  sin- 
gle bills  were  not,  and  that  neither  of  them  was,  the  act  or  deed 
of  him  the  said  defendant,  and  issues  being  joined  on  the  said 
pleas,  and  other  proceedings  being  thereupon  had  in  the  said 
court,  afterwards,  to  wit,  on  &c.  at  &c.  juries  were  duly  impan- 
nelled  and  sworn,  in  the  said  court,  to  try  the  said  issues,  and 
the  said  juries,  then  and  there,  found  the  said  issues  for  the  de- 
fendant, at^  that  the  said  single  bills  were  not  the  acts  and 
deeds  of  the  said  defendant.  Whereupon  judgments  were  ren- 
dered by  the  said  court  in  favour  of  the  defendant,  in  the  said 
suits,  as  by  the  records  and  proceedings  of  the  said  suits,  in  the 
said  court  remaining,  doth  more  fully  appear.  And  the  plain- 
tiff further  saith,  that  the  said  single  bills,  which  by  the  verdicts 
and  judgments  aforesaid  were  decided  to  be  not  the  single  bills 
of  the  said  defendant,  and  not  in  law  valid  and  binding  upon 
him,  were  the  same  single  bills  which  the  said  plaintiff  had  pre- 
viously shewn  to  the  said  defendant,  and  which  the  said  defen- 
dant had  promised,  in  manner  and  form  before  recited,  to  pay  to 
the  said  plaintiff,  if  he  would  take  and  obtain  a  transfer  of  the 
same,  and  further  that  the  same  had  not  been,  in  any  manner, 
altered,  erased,  forged  or  counterfeited  from  the  time  of  the  said 
promise  by  the  defendant  to  the  plaintiff  till  the  rendition  of  the 
said  judgments.  Whereby  the  defendant  became  bound  and 
liable  to  pay  to  the  plaintiff  the  said  first  mentioned  sum  of 

dollars  which  was  due  from  the  said  JV.  to  the  said 

plaintiff,  and  the  other  sum  of dollars  which  the  plaintiff 

paid  to  the  said  JV.  for  the  said  single  bills,  making  in  all  the 
sum  of  440  dollars  with  interest  from  the  1st  day  of  May  1S18, 
and  440  dollars  with  interest  from  the  1st  day  of  May  1819, 
and  the  defendant,  being  so  bound  and  liable  as  aforesaid,  in 
consideration  thereof,  afterwards,  to  wit,  on  the  same  day  and 
year,  and  at  the  county  aforesaid,  assumed  upon  himself,  and, 
then  and  there,  promised  the  plaintiff  to  pay  to  him  the  said 
sums  of  money  last  aforesaid,  when  he  the  said  defendant 
should  be  thereunto  afterwards  requested.  Nevertheless  the 
said  defendant  not  at  all  regarding  his  said  several  promises, 
undertakings,  and  assumptions,  in  form  aforesaid  made,  but 
contriving  and  fraudulently  intending,  craftily  and  subtily,  to 
deceive  and  defraud  the  said  plaintiff  in  this,  has  not  yet  paid 
the  said  several  sums  of  money  aforesaid,  or  any  or  either  of 
them,  or  any  part  thereof,  to  the  said  plaintiff,  although  often 
requested  so  to  do,  but  the  said  defendant  to  him  the  plaintiff  to 


Declarations  in  asstimpsit.  515 

pay  the  same  has  hitherto  wholly  neglected  and  refused,  and 
still  doth  neglect  and  refuse  to  pay  the  same,  to  the  damage  of 
the  said  plaintiff  of  $2000;  and  therefore  he  brings  suit. 

14.  Right  and  remedy  of  assignee  against  assignor. 

How  FAR  ASSIGNOR  IS  RESPONSIBLE. — A  pcTson  holding  a  bond,  pay- 
able to  another,  may  dispose  of  it,  with  the  assignment  of  the  obligee, 
and  state,  at  the  time,  that  there  is  to  be  no  responsibility  upon,  or  re- 
course against  him.  Yet  if  it  turn  out  that  not  a  cent  was  due  upon 
the  bond,  at  the  time  it  was  assigned,  it  may  become  the  province  of  a 
jury  to  judge  of  the  whole  contract  and  say  whether  the  party  taking 
the  bond  meant  to  take  upon  himself  all  risks,  and,  among  others,  that 
of  the  bond  having  been,  at  the  time  of  the  assignment,  already  paid 
off,  or  only  to  take  the  risk  of  the  insolvency  of  the  obligors,  and  of  the 
assignor.  Mays  v.  Callison,  6  Leigh  230.  Where,  however,  a  bond  is 
disposed  of  with  an  agreement  that  the  party  shall  not  be  responsible, 
though  he  assign  it,  in  general  terms,  he  will  not  be  responsible  in  an 
ordinary  case,  not  even  to  a  subsequent  assignee,  having  no  notice  of  the 
agreement.     Stubbs  v.  Burwell,  2  H.  &  M.  536. 

In  the  absence  of  such  agreement,  the  case  of  Mackie's  ex' or  v.  Davis 
(^c.  2  Wash.  219.  cited  in  1  Rob.  Prac.  51,  2.  settles  the  responsibility 
of  the  assignor  to  his  assignee. 

Assumpsit  is  the  proper  remedy. — No  matter  what  may  be  the  dig- 
nity of  the  debt  assigned,  nor  what  the  nature  of  the  instrument  by  which 
the  assignment  is  made,  the  remedy  for  the  assignee  against  the  assignor, 
is  by  action  of  assumpsit.  If,  for  example,  a  judgment  be  assigned,  and 
afterwards  reversed,  upon  such  reversal,  the  assignee  may  maintain  as- 
sumpsit against  his  assignor ;  and  the  action  will  lie,  notwithstanding 
the  assignment  is  by  a  sealed  instrument.  The  instrument  of  assignment, 
in  such  a  case,  is  not  considered  the  ground  of  the  action,  but  only  in- 
ducement thereto.     Arnold  v.  Hickman,  6  Munf  15. 

Due  diligence  must  appear,  and  generally  there  should  be  a 
SUIT  against  obligor. — Due  diligence  must  appear,  and  this  is,  gene- 
rally speaking,  to  be  established  by  shewing  a  suit  against  the  obligor  or 
maker,  and  the  result  thereof     Lee  v.  Love  Sf  Co.  I  Call  497. 

Where  failure  to  sue  does  no  injury  to  assignor,  suit  may  be 
DISPENSED  WITH,  AS  WHERE  MAKER  IS  NOT  LIABLE. — There  is  HO  neces- 
sity for  a  suit,  if  the  case  be  one  in  which  no  injury  is  done  to  the  as- 
signor by  the  failure  to  sue,  as  in  a  case  of  exchange  notes,  where  there 
is  no  consideration,  except  that  of  one  note  being  given  for  the  other. 
Thus  in  Caton  Sf  Vcale  v.  Lenox  Sfc.  5  Rand.  331.  Caton  S^  Veale  were 
sued  as  assignors  of  a  note  made  to  them  by  Hartshorne ;  and  it  was 
proved  that  this  note  was  given  in  exchange  for  a  note  of  the  same  date, 
and  for  the  same  amount,  executed  to  Hartsliorne  by  Caton  S^  Veale, 
which  last  mentioned  note  had  never  been  paid.  Upon  this  state  of 
facts,  Caton  Sf  Vcale  had  no  right  to  require  of  Hartshorne  to  pay  the 
first  mentioned  note,  and  consequently  no  suit  against  him  was  neces- 
sary. 


516  Declarations  in  assumpsit. 

Or  where  the  maker  is  insolvent.-^Not  is  it  necessary  to  sue  if 
the  maker  has  been  discharged  under  the  former  bankrupt  laws,  or  un- 
der the  insolvent  law  of  this  state,  or  if  it  can  be  shewn  that  the  maker 
is  in  fact  insolvent,  so  that  a  suit  against  him  would  have  been  wholly 
unavailing.  Opinion  of  Roane,  J.  in  Barhsdale  v.  Fenwick,  referred  to 
in  2  H.  &  M.  114.  note.  Opinion  of  chancellor  T'aylor,  in  Saunders  v. 
Marshall  S^c.  4  H.  &l  M.  455.  Brown  v.  Ross,  6  Munf  391.  Coiner  v. 
Hansharger,  4  Leigh  452.  Clarke  v.  Young  Sf  Co.  1  Cranch  180.  Violet 
V.  Patton,  5  Cranch  153. 

Whether  non-residence  of  obligor  is  a  sufficient  excuse  for 
NOT  suing  him. — Is  abscncc  from  the  country  or  non-residence  a  suffi- 
cient excuse  for  not  suing  the  obligor?  If  the  obligor  is  a  non-resi- 
dent at  the  time  of  the  execution  of  the  bond,  it  is  clearly  not  a  good 
excuse.  In  such  case  the  assignee  knows  the  fact  of  non-residence,  or 
must  be  presumed  to  know  it,  when  he  takes  the  assignment.  He  makes 
the  contract  on  the  usual  terms  of  using  due  diligence,  and  impliedly 
stipulates  that  he  will  sue  him,  if  necessary,  where  he  resides.  Such 
was  the  case  of  Dulany  v.  Hodgkin,  5  Cranch  333.  The  maker  resided 
in  Virginia,  never  having  been  in  the  district  of  Columbia ;  and  suit 
was  brought  in  the  district  against  the  assignor.  It  was  held  that  the 
residence  in  a  foreign  jurisdiction  was  no  excuse  for  not  having  sued  the 
maker. 

The  case  of  Dulany  v.  Hodgkin  is  cited  and  approved  in  Drane  v. 
Scholfield,  6  Leigh  386. 

Where  no  excuse  for  not  suing,  suit  must  be  diligently  prose- 
cuted.— Where  the  assignee  cannot  shew  such  circumstances  as  will 
excuse  him  for  not  suing,  his  suit  must  not  be  unreasonably  delayed  or 
negligently  prosecuted.  Barksdale  v.  Fenicick,  4  Call  492.  Bronaugh 
(^  Co.  V.  Scott,  5  Call  78.  Drane  v.  Scholfield,  6  Leigh  386. 

In  the  case  last  mentioned,  the  note  was  executed  in  Fairfax  county, 
on  the  10th  of  June  1818,  was  assigned  on  the  18th  of  that  month,  and 
became  due  on  the  12th  of  August  in  the  same  year.  In  the  summer  of 
that  year,  the  maker  removed  to  Maryland  and  established  himself  there, 
at  a  distance  less  than  twenty  miles  from  his  former  place  of  residence. 
When  he  removed,  he  had  in  possession  two  slaves,  and  he  continued 
for  some  time  to  hold  them,  as  well  as  some  household  furniture.  The 
assignee  allowed  more  than  eighteen  months  to  elapse  before  he  brought 
suit  in  Maryland,  and  then  failed  to  file  his  declaration  another  year ; 
and  in  the  mean  time  the  maker  became  insolvent.  When  the  assignee 
sued  the  assignor,  the  latter  demurred  to  the  evidence,  and  upon  the 
demurrer  judgment  was  given  for  the  defendant.  It  was  considered  to 
be  clear  that  due  diligence  had  not  been  used. 

The  result  of  the  suit  must  be  shewn.  The  result  of  the  suit 
against  the  maker  must  be  shewn  in  the  action  against  the  assignor. 

If  judgment  against  maker  be  injoined,  assignor  must  not  be 
sued  while  injunction  is  pending. — If  the  assignee  obtains  a  judg- 
ment against  the  obligor,  and  the  latter  injoins  it  upon  the  ground  of 
equitable  discounts  against  the  assignor  prior  to  the  assignment,  the  as- 
signee cannot  thereupon  maintain  assumpsit  against  the  assignor  upon  a 
general  allegation  that  he  was  debarred  by  the  injunction  from  collecting 
the  money  from  the  obligor.     He  must  aver  in  his  declaration  that  the 


Declarations  in  msumpsit.  617 

injunction  was  made  perpetual,  or  state  the  proceedings  which  were  had 
therein.     M' Clung  v.  Arbuckle,  6  Munf.  315. 

If  maker  be  taken  under  a  ca.  sa.  assignor  must  not  be  sued 
WHILE  HE  CONTINUES  CHARGED  IN  EXECUTION. — After  a  judgment  by  the 
assignee  against  the  obligor,  if  a  ca.  sa.  be  sued  out  which  is  returned 
"  executed  on  the  body  of  the  defendant,  who  stands  committed  to  the 
prison  bounds  &c.,"  and  in  this  state  of  things  an  action  is  commenced 
by  the  assignee  against  the  assignor,  the  action  must  be  considered  as 
brought  prematurely.  It  cannot  be  maintained  when,  for  aught  that  ap- 
pears, the  obligor  is  still  in  custody,  or  may  have  paid  the  debt.  JoJm- 
ston  V.  Hackley,  6  Munf.  448. 

But  without  issuing  ca.  sa.  suit  may  be  brought  upon  return 
OF  NULLA  BONA. — It  is  howevcr  not  incumbent  on  the  assignee  to  sue  out 
a  ca.  sa.  against  the  obligor  in  order  to  entitle  himself  to  his  action 
against  the  assignor.  The  assignee  does  all  that  is  necessary  when  he 
recovers  judgment  against  the  obligor  in  the  county  in  which  he  resides, 
and  issues  z.  fieri  facias  against  his  estate,  upon  which  a  return  of  nulla 
bona  is  made.  Goodall  v.  Stuart,  2  H.  &  M.  105.  And  he  may  reco- 
ver against  the  assignor,  although  bail  may  not  have  been  required  in 
the  suit  against  the  obligor.  Harrison's  admW  v.  Raines's  adm'x,  5 
Munf  451.     See  also  Caton  4*  Veale  v.  Lenox  i^'c.  5  Rand.  31. 

Sheriff's  return  cannot  be  controverted. — In  Goodall  v.  Stuart, 
2  H.  &/  M.  105.  the  defendant  offered  to  give  evidence  to  prove  that  B. 
against  whom  the  execution  issued,  had  goods  and  effects  sufficient  to 
have  satisfied  the  execution,  at  the  time  of  its  return  by  the  sheriff  of 
Goochland,  but  the  district  court  refused  to  permit  the  evidence  to  go  to 
the  jury,  and  the  court  of  appeals  affirmed  the  judgment.  Tucker,  J. 
said,  a  fact  verified  by  the  sheriff's  return,  cannot  be  controverted  in  a 
suit  between  other  persons ;  for  he  is  a  sworn  officer,  and  shall  be  pre- 
sumed to  have  done  his  duty,  until  the  contrary  be  proved,  by  a  recovery 
against  him  for  his  false  return.  See  p.  112.  Roaiie,  J.  said,  it  was  not 
shewn  that  the  assignee  had  any  reason  to  believe  that  any  other  execu- 
tion would  more  probably  have  produced  the  money,  or  that  the  assignor 
gave  any  instructions  on  the  subject.  See  p.  114.  And  Fleming,  J. 
expressed  it  as  his  opinion  that  if  the  obligor  had  secreted  his  property 
from  the  sheriff,  the  assignor,  who,  it  is  presumed,  best  knew  the  circum- 
stances of  his  debtor,  ought,  in  order  to  exonerate  himself  from  his  re- 
sponsibility, to  have  shewn  the  property  to  the  sheriff.     See  p.  1 15. 

The  principle  established  in  Goodall  v.  Stuart,  has  been  recently  sanc- 
tioned in  the  case  of  Smith  S^  Rickard  v.  Triplett  S^  Ntale,  4  Leigh  590, 

15.   Count  against  assignor  setting  forth  return  of  ?iuUa  bona. 

For  this,  to  wit,  that  a  certain  J.  B.  B.  on  the  29th  day  of 
June  in  the  year  1819,  in  the  said  county,  by  his  certain  writing 
obligatory,  sealed  with  his  seal,  the  date  of"  which  is  that  just 
mentioned,  bound  himself  to  pay,  ten  days  after  the  date  thereof, 
to  the  said  L.  S.  or  his  assigns,  the  sum  of  $73.81  cents;  and 
the  said  L.  S.  after  the  making  the  said  writing  obligatory,  to 
wit,  on  the day  of ,  in  the  year ,  in  the  said 


518  Declarations  in  assumpsit. 

county,  for  value  received  of  him,*  to  wit,  the  amount  of  the 
said  writing  obligatory,  assigned  the  said  writing  obligatory  to 
the  plaintiffs,  and  subscribed  his  name  to  the  said  assignment. 
And  the  plaintiffs  aver,  that  the  sum  of  money  mentioned  in  the 
said  writing  obligatory,  not  having  been  paid,  according  to  the 
tenour  and  effect  thereof,  the  said  plaintiffs,  after  the  expiration 
of  the  time  appointed  for  the  payment  of  the  same,  to  wit,  on 

the day  of in  the  year  1820,  instituted  an  action  of 

debt  upon  the  said  writing  obligatory,  to  recover  the  sum  of 
money  specified  therein,  against  the  said  J.  D.  D.  in  the  court 
of  hustings  for  the  city  of  R.,  and  on  the  12th  day  of  the  same 
month,  the  said  B.  then  being  in  custody  on  the  original  process 
sued  out  in  the  said  action,  confessed  a  judgment,  in  the  office 
of  the  said  court,  in  the  said  action  for  $  73.81  cents,  (the  sum 
specified  in  the  said  writing  obligatory,)  with  interest  thereon, 
after  the  rate  of  six  per  centum  iicrannum^  from  the  9lh  day  of  June 
in  the  year  1819  till  paid,  and  the  costs  by  the  plaintiffs  about  their 
suit  expended,  to  wit,  $  5.99,  as  by  a  transcript  of  the  record 
and  proceedings  in  that  suit  will  appear.  And  the  plaintiffs 
further  aver,  that  upon  the  said  judgment,  they  afterwards,  to 
wit,  the  14th  day  of  the  same  month,  in  the  same  year,  caused 
to  be  issued  from  the  office  of -the  said  court,  a  writ  o{  fieri  fa- 
cias, directed  to  the  sergeant  of  the  said  city,  commanding  him 
to  make  of  the  goods  and  chattels  of  the  said  B.  within  his  said 
corporation,  (he  then  residing  therein,)  the  said  sum  of  $73.81 
cents,  with  interest  thereon  as  aforesaid,  and  also  the  costs  afore- 
said, and  to  have  the  same  before  the  justices  of  the  said  court, 
at  the  courthouse  of  the  said  city,  on  the  third  Wednesday  in 
January  next  after  the  date  of  the  said  writ,  to  render  to  the 
plaintiffs;  on  which  writ  o^  fieri  facias,  the  said  sergeant  made 
the  following  return,  to  wit :  "  No  effects  found  in  my  bailiwick 
belonging  to  J.  B.  B.  W.  D.  JV.  sergeant  C.  Rr  the  said  W.  D. 
TV.  being,  then  and  there,  sergeant  of  the  said  city.  And  the 
said  plaintiffs  in  fact  say,  that  they  have,  hitherto,  been  wholly 
unable  to  obtain  payment  of  the  sum  of  money  specified  in  the 
said  writing  obhgatory,  with  the  interest  and  costs  aforesaid,  or 
any  part  thereof.     Of  all  which  the  said  L.  S.   heretofore,  to 

wit,  on  the day  of ,  in  the  year ,  at  the  county 

aforesaid,  had  notice.  By  reason  whereof  the  said  L.  S.  be- 
came liable  to  pay  to  the  plaintiffst  the  sum  of  money  specified 
in  the  said  writing  obligatory,  with  interest  thereon  as  aforesaid 
and  the  costs  aforesaid  ;  and  being  so  liable,  the  said  L.  S.  in 
consideration  thereof,  afterwards,  to  wit,  on  the  day  and  in  the 
year  last  mentioned,  in  the  county  aforesaid,  undertook  and  pro- 
mised the  plaintiffs  to  pay  them  the  same  when  he  should  be 
thereto  afterwards  required.     Nevertheless  the  said  L.  S.  al- 


Declarations  in  assumjmt.  519 

though  often  required,  has  not  paid  to  the  plaintiffs  the  said  sum 
of  money,  with  interest  thereon  as  aforesaid  and  the  said  costs, 
or  any  part  thereof,  but  to  pay  the  same,  and  every  part  thereof, 
has  hitherto  refused,  and  still  does  refuse,  to  the  damage  of  the 
said  plainiifis  $  200  ;  and  therefore  they  bring  suit  &c. 

*  The  declaration  is  faulty,  if  it  does  not  aver  a  consideration  for  the 
assignment.  Without  such  averment,  there  would  be  no  foundation  for 
the  assumpsit  afterwards  charged.  Hall  v.  Smith  Sfc.  3  Munf  550. 
The  statement  in  the  declaration  that  the  assignment  was  for  value  re- 
ceived, being  an  averment  of  consideration,  and  not  a  description  of  the 
instrument,  the  want  of  these  words  in  the  assignment  will  not  be  a  valid 
ground  of  objection  for  variance.  See  opinion  of  Roane,  J.  in  31'  Wil- 
liams V.  Smith,  1  Call  125.  And  as  to  the  evidence  to  sustain  the  aver- 
ment, it  is  considered  that  every  assignment  imports  in  itself  a  valuable 
consideration.  See  opinion  of  Tucker,  J.  in  Goodall  v.  Stuart,  2  H.  &> 
M.  111. 

t  It  is  considered  that  the  sum  received  by  the  assignor,  and  not  the 
amount  of  the  bond,  fixes  the  extent  of  the  assignor's  liability  when 
there  is  proof  to  shew  the  sum  received.  See  opinion  of  Green,  J.  in 
Wliitworth  V.  Adams,  5  Rand.  377.  Stubbs  v.  Burwell,^  H.  &  M.  540. 
But  in  the  absence  of  proof  shewing  the  sum  which  the  assignor  actu- 
ally received  for  his  assignment,  it  must  be  presumed  that  he  received 
an  equal  sum  with  that  due  upon  the  bond.  See  opinion  of  Carrington, 
J.  in  JIackic's  ex'orv.  Davis,  2  Wash.  231.  And  the  assignee  then  re- 
covers of  the  assignor  tlie  amount  of  the  bond  with  the  costs  of  the  suit 
against  the  obligor.  See  opinion  of  Fleming,  J.  in  Goodall  v.  Stuart, 
2  H.  &  M.  115. 

16.   Coimt  against  assignor  alleging  notorious  insolvency. 

After  describing  the  obligation  and  stating  the  assignment,  proceed 
as  follows  : 

And  the  plaintiffs  say  that  the  sum  of  money  specified  in  the 
said  writing  obligatory  was  not  paid  at  the  time  appointed  therein 
for  payment,  or  at  any  other  time,  before  or  since,  but  that  the 
same  is  still  in  arrear  and  unpaid.  And  the  said  plaintiffs  aver, 
that  before  the  time  of  payment  mentioned  in  the  said  writing 
obligatory,  the  said  J.  B.  B.  became  totally'  and  notoriously  in- 
solvent, and  unable  to  pay  the  said  sum  of  money  mentioned  in 
the  said  writing  obligatory,  or  any  part  thereof,  and  that  ever 
since  the  said  time  of  payment,  the  said  J.  B.  B.  has  been  and 
still  is  totally  and  notoriously  insolvent  and  unable  to  pay  the 
said  sum  of  money,  or  any  part  thereof,  and  that  the  said  plain- 
tiffs have,  hitherto,  been  unable  to  recover,  and  cannot  now  re- 
cover, from  iho  said  J.  B.  B.  the  said  sum  of  money,  or  any  part 
thereof.     Of  all  which  the  said  L.  S.  heretofore,  to  wit,  on  &c 


520  Declarations  in  assumpsit. 

at  &c.  had  notice.  By  reason  whereof  the  said  L.  S.  became 
liable  to  pay  to  the  plaintiffs  the  sum  of  money  specified  in  the 
said  writing  obligator}'^,  &c.  (as  last). 

17.  Aftci-  judgment  by  second  assignee  against  obligor ,  and  return 
of  nulla,  bona,  count  by  first  assignee  against  his  assignor.  Sec 
Goodall  V.  Stuart,  2  H.  &  M.  105. 

After  describing  the  obligation,  stating  both  assignments,  and  setting 
forth  the  judgment  against  the  obligor,  and  return  of  nulla  bona,  pro- 
ceed as  follows : 

By  reason  whereof  the  said  plaintiff  became  liable  to  pay  to 
the  said  T.  iV.  the  sum  of  money  specified  in  the  said  writing 
obligatory,  with  interest  thereon  as  aforesaid  and  the  costs  afore- 
said :  and  being  so  liable,  the  said  plaintiff  in  consideration 
thereof,  afterwards,  to  wit,  on  &c.  at  &c.  paid  the  same  to  the 
said  T.  N. ;  and  the  defendant  was,  then  and  there,  liable  to  pay 
the  same  to  the  plaintiff,  and  being  so  liable,  afterwards,  to  wit, 
on  the  day  and  year  last  aforesaid,  at  &e.  undertook  and  pro- 
mised the  plaintiff  to  pay  him  the  same,  when  he  the  said  defen- 
dant should  be  thereto  afterwards  required.  Nevertheless  &c. 
(as  in  No.  15.) 

18.  For  breach  of  a  promise  to  marry. 

Formerly,  it  was  doubted  whether  any  action  could  be  maintained  on 
mutual  promises  to  marry,  but  that  is  a  point  not  now  to  be  disputed. 
Holt  V.  Ward,  2  Str.  938. 

A  contract  to  marry  made  by  a  person  of  full  age  with  an  infant  is 
not  void  but  only  voidable  at  the  election  of  the  infant.  As  to  the  per- 
son of  full  age  it  absolutely  binds.  A  demurrer  was  therefore  sustained 
to  a  plea  alleging  that  the  plaintiff  at  the  time  of  the  promise,  was  an 
infant  of  15  years  of  age.    S.  C. 

The  following  precedent  is  copied  from  the  declaration  in  the  case  of 
Mihtead  v.  Redman,  3  Munf  219. 


For  that  on  the day  of  in  the  year ,  in 

the  county  aforesaid,  he  the  said  J.  M.  then  being  sole  and  un- 
married, in  consideration  that  the  said  Jane,  she  being  also  then 
sole  and  unmarried,  at  the  special  instance  of  the  defendant, 
had,  then  and  there,  agreed  and  undertaken,  and  faithfully  pro- 
mised the  said  defendant  that  she  the  said  Jane  the  plaintiff 
would  take  the  said  defendant  to  be  her  husband  within  the 
space  of  six  months  then  next  following,  he  the  said  defendant 
undertook  and,  then  and  there,  faithfully  promised  the  said 
plaintiff  Jane,  that  he  the  said  Joseph,  the  defendant,  would  lake 
to  his  wife  the  said  Jane  the  plaintiff,  within  the  said  space  of 


Declarations  in  assumpsit.  521 

six  months  then  next  following;  and  the  said  Jane  the  plaintiff, 
confiding  in  the  said  promise  and  undertaking  of  the  said  defen- 
dant, hath  always  from  thence,  hitherto,  refused  to  contract 
matrimony  with  any  other  man  whatsoever,  and  still  remains 
and  is  sole  and  unmarried,  and  always  from  the  time  of  making 
the  promises  and  undertakings  aforesaid,  for  the  said  space  of 
six  months,  then  next  following,  and  always  from  thence  after- 
wards hitherto,  she  the  said  plaintiff  being  sole  and  unmarried, 
was  and  is  ready  to  lake  to  her  husband  the  said  defendant, 
and  very  often  within  that  time,  offered  to  take  to  be  her  hus- 
band the  said  defendant.  Yet  the  said  defendant  not  in  the 
least  regarding  his  many  promises  or  oaths,  but  contriving  and 
fraudulently  intending,  craftily  and  subtily  to  deceive  the  said 
plaintiff,  hath  not  wilhin  the  time  aforesaid,  nor  at  any  time 
since,  taken  to  wife  the  said  plaintiff,  although  often  required  so 
to  do;  but  he  wholly  hath  refused  and  still  dolh  refuse  to  take 
her :  Whereby,  she  the  plaintiff  is  damaged  $  1000  ;  and  there- 
fore she  sues. 

As  to  what  may  be  pleaded  by  the  defendant,  see  Young  v.  Murphy, 
3  Bingh.  N.  C.  54.  32  Eng.  Com.  Law  Rep.  38. 

19.   Of  bailment. 

Wheat  may  be  the  subject  of  bailment  for  the  purpose  of  being  con- 
verted into  flour  for  the  use  of  the  bailor.  Such  bailment  undeniably 
exists  where  the  flour  of  the  same  wheat  is  to  be  received  in  return ; 
and  the  character  of  the  transaction  is  not  lost,  when,  for  general  con- 
venience, the  wheat  delivered  at  a  mill  by  many  customers,  is  agreed  to 
be  put  into  a  common  stock  and  a  return  made  out  of  the  common  mass 
of  flour.  This  was  the  case  in  Slaughter  v.  Green  and  others,  1  Rand. 
3.  The  plaintiff"  delivered  wheat  into  a  mill  of  the  defendants,  and  was 
to  receive  therefor  a  certain  quantity  of  flour.  The  quantity  of  flour 
so  to  be  returned  was  not  to  be  out  of  the  particular  wheat  delivered  by 
the  plaintiff".  But  it  appeared  that  by  a  common  usage,  the  wheat  sent 
to  the  mill  by  different  persons  was  mixed  together,  flour  was  ground 
from  the  mass  so  mixed,  and  out  of  the  flour  so  ground,  each  person 
sending  wheat  to  the  mill  was  to  receive  a  certain  quantity,  proportioned 
to  the  quantity  of  wheat.  Before  the  plaintiflf  received  flour  for  his 
wheat,  the  mill  was  accidentally  burnt  by  fire.  It  was  so  burnt  when 
there  was  in  the  mill  flour  &.c.  enough  to  satisfy  all  the  claims  upon  the 
mill  for  the  same.  The  court  of  appeals  held  that  the  plaintiff  was  a 
bailor,  and  the  wheat  remaining  his  property,  the  loss  was  to  be  borne  by 
him. 

66 


522  Declarations  in  assumpsit. 

20.  Against  a  common  carrier, 

A  common  carrier  is  liable  for  all  accidents  to  goods  entrusted  to  him 
for  transportation,  except  such  as  arise  from  the  act  of  God,  the  act  of 
the  enemies  of  the  commonwealth,  or  the  act  of  the  owners  of  the  goods. 
Murphy  Sfc.  v.  Staton,  3  Munf  239. 

Although  the  defendant  should  prove  that  the  navigation  of  the  river, 
on  which  the  loss  happened,  is  attended  with  so  much  danger  that  such 
loss  might  happen  notwithstanding  the  utmost  endeavours  of  the  water- 
man and  crew  to  prevent  it,  and  though  in  connexion  with  this,  there 
be  also  proof  that  the  person  conducting  the  boat  possesses  competent 
skill,  that  he  has  used  due  diligence  and  has  provided  hands  of  sufficient 
strength  and  experience  to  assist  him  in  the  conduct  of  the  boat,  the  de- 
fendant will  notwithstanding  be  held  liable.     S.  C. 

In  the  case  in  which  the  following  declaration  was  filed,  the  defendant 
pleaded  certain  pleas  which  were  adjudged  good  on  demurrer.  See  those 
pleas,  ante,  p.  73.  No.  21. 

For  that  whereas  the  said  E.  W.  heretofore,  to  wit,  on  the 

day  of at ,  to  wit,  at ,  in  the  county 

of  H.  aforesaid,  being,  there,  then  and  for  some  time  before, 
owner  of  certain  boats  emplo3'ed  by  him,  as  a  common  carrier, 
in  carrying  and  conveying  goods  and  merchandize,  wheat,  flour, 
tobacco,  and  other  articles  and  country  productions,  by  water 
from  and  to  the  city  of  R.  in  the  county  aforesaid,  to  and  from 
places  on  the  canal,  river,  and  branches  of  James  river,  in  con- 
sideration of  this,  that  the  said  plaintiff  to  wit,  on  the day 

of at  Palmyra,  on  the  Rivanna,  a  branch  of  James  river, 

at  the  request  of  the  said  E.  W.  had  laden,  in  good  order  and 
condition,  on  board  a  certain  boat  owned  by  him  the  said  E.  W. 
and  employed  by  him  as  aforesaid,  eighty  barrels  of  flour  of 
great  value,  to  wit,  of  the  value  of  $500,  to  be  by  him  the  said 
E.  W.  in  his  said  boat,  for  certain  freight  and  reward  to  him  in 
that  behalf,  conveyed  from  Palmyra  aforesaid  to  R.  aforesaid, 
and  there  (viz.  at  R.  aforesaid)  in  like  order  and  condition,  and 
without  loss  or  damage,  safely  and  securely  delivered,  and  also 
in  consideration  of  the  said  freight  and  reward  to  him  in  that 
behalf  he  the  said  E.  W.  undertook  the  said  eighty  barrels  of 
flour  so  as  aforesaid  laden  on  board  his  said  boat  at  Palmyra 
aforesaid  thence  without  loss  or  damage  safely  and  securely  to 
carry,  convey,  take  care  of,  and  deliver  in  good  order  and  con- 
dition at  Richmond  aforesaid,  to  the  said  plaintiflT  or  his  agent. 
Nevertheless  the  said  E.  W.  his  servants  and  agents  afterwards 

to  wit,  on  the day  of at to  wit,  at in 

the  county  aforesaid,  so  negligently  and  improvidenlly  managed 
the  said  eighty  barrels  of  flour  in  carrying  and  conveying  the 
same  from  Palmyra  aforesaid   to  Richmond  aforesaid,  and  in 


Declarations  in  assumj^sit.  623 

taking  care  thereof,  that  for  the  want  of  the  care  of  the  said  E. 

W.  his  servants,  and  agents, of  the  said  barrels  of  flour 

were  greaiiy  damaged  by  wet,  and  the  residue  thereof  utterly 
lost.  Whereupon  the  said  plaintiff'  says  he  is  injured,  and  hath 
sustained  damage  to  the  value  of  $200,  and  therefore  he  brings 
suit  &c. 

21.  Against  a  vendee  for  the  piice  of  goods  sold  and  virtuallij 

delivered. 

It  is  a  settled  rule  of  the  common  law  that  property  in  personal  chat- 
tels passes  only  by  actual  delivery  of  the  thing  except  in  cases  in  which 
some  equivalent  delivery  is  agreed  upon  by  the  parties  or  is  established 
by  custom  or  usage,  and  then  a  virtual  delivery  is  substituted  for  actual 
delivery  of  the  thing.  But,  in  these  cases,  unless  the  thing  was  in  a 
condition  to  be  delivered  without  more  to  be  done  by  the  vendor,  either 
as  regarded  the  price  or  the  quantity,  as  there  could  be  no  actual  delivery 
until  that  was  done  by  the  vendor,  so  there  can  be  no  virtual  delivery 
equivalent  to  it.  And  all  the  cases  on  the  subject  appear  to  have  turned 
on  the  enquiry,  whether  from  the  nature  of  the  subject,  it  was  or  was 
not,  in  a  deliverable  condition,  that  is,  without  more  to  be  done  by  the 
vendor  affecting  the  price  or  the  quantity  of  the  thing  to  be  delivered. 
Brooke,  pres't,  in  Pleasants  v.  Pendleton,  6  Rand.  503. 

The  case  just  cited  was  a  case  of  a  cash  sale  in  the  city  of  Richmond, 
by  one  merchant  to  another  of  119  barrels  of  flour  per  bill  of  parcels, 
lying  in  a  certain  warehouse.  The  seller  gave  to  the  purchaser  an  or- 
der on  the  keeper  of  the  warehouse  for  the  delivery  of  the  flour,  speci- 
fying the  whole  number  of  barrels  sold,  the  different  mill  brands  upon 
the  flour  and  the  number  of  barrels  of  each  brand.  The  purchaser 
gave  to  the  seller  a  bank  check  for  the  amount  of  the  purchase.  And 
the  seller  executed  a  receipt  for  the  same.  On  the  morning  after  the 
sale,  before  the  flour  was  actually  delivered,  the  warehouse  caught  fire, 
and,  with  the  flour  in  it,  was  entirely  consumed,  and  the  check,  being  in 
the  counting  room  of  the  seller,  which  was  a  part  of  the  same  building, 
was  consumed  also.  It  appeared  that  it  was  in  the  common  usage  of 
trade  in  the  city  of  Richmond  for  flour  in  store  to  be  sold  by  draft  or  or- 
der on  the  storekeeper,  and  to  pass  by  that  mode  of  transfer  through 
many  different  hands,  without  actual  delivery.  Upon  this  case,  the  court 
held  that  the  contract  of  sale  was  complete ;  that  the  property  in  the 
flour  was  in  the  purchaser ;   and  that  he  was  to  bear  the  loss. 

In  the  same  case  it  appeared  that  it  was  the  usage  in  Richmond  to 
charge  the  seller  with  the  storage  and  deliver  the  flour  to  his  order  when 
called  for ;  that  the  storage  due  on  said  flour  had  not  been  paid  at  the 
time  of  the  fire ;  but  the  warehouse  keeper  said  that  he  would  have  de- 
livered any  flour  of  the  seller  to  his  order  on  demand,  holding  him  re- 
sponsible for  the  storage.  It  was  further  stated  that  it  sometimes  hap- 
pened that  the  flour  when  about  to  be  delivered  required  coopering,  in 
which  case,  according  to  usage,  the  cooperage  is  done  by  the  storer,  at 
the  expense  of  the  vendor ;  that  sometimes  out  of  a  hundred  barrels  no 
cooperage  is  required,  but  sometimes  40  out  of  a  hundred  barrels  re- 


524  Declarations  in  assumpsit. 

quire  it.  Upon  these  facts  it  was  contended  that  the  case  fell  within 
that  class  of  cases  where  something  still  remained  to  be  done  by  the 
vendor  to  complete  the  contract.  But  the  court  of  appeals  decided 
otherwise,  being  of  opinion  that  the  charge  for  storage  and  the  charge 
for  cooperage  (if  indeed  the  latter  was  required)  would  have  presented 
no  obstacle  to  the  delivery  of  the  flour  between  the  sale  and  the  fire. 

In  the  same  case  it  further  appeared  that  the  vendor  at  the  time  of 
the  sale  had  in  the  warehouse  123  barrels  of  fine  flour  of  the  brands 
specified,  viz.  two  more  of  one  brand  and  two  more  of  another  brand 
than  were  sold,  and  it  was  contended  that  there  was  no  such  separation 
as  would  enable  the  vendee  to  designate  any  particular  barrels  as  his 
property.  It  was  however  shewn  that  between  barrels  of  fine  flour  of 
the  same  mill  brand,  there  was  no  difference  in  the  market  as  to  pric€, 
and  it  could  not  have  been  of  the  slightest  importance  to  the  vendee 
which  two  barrels  were  left  out  of  the  two  brands  of  which  there  was  a 
surplus  quantity.  Upon  this  point  the  case  of  Jackson  v.  Anderson,  4 
Taunt.  24.  was  an  express  authority,  and  it  was  held  that  the  property  in 
the  119  barrels  passed  to  the  vendee,  notwithstanding  the  want  of  sepa- 
ration from  the  other  flour. 

22.  Against  a  purchaser  at  auction,  failiyig  to  comply  with  the  terms 
for  the  loss  upon  a  resale. 

Webster  S^c.  v.  Hohan,  7  Cranch  399.  was  a  case  of  a  sale  of  a  house 
at  auction,  and  the  terms  of  the  agreement  had  to  be  sought  for  in  the 
articles  exhibited  by  the  auctioneer  at  the  time  of  sale.  They  provided 
"  that  the  purchaser  should  secure  the  purchase  money  with  interest  by 
his  promissory  notes  with  two  approved  endorsers,  payable  in  6  and  12 
months,"  and  "that  the  purchaser  should  be  allowed  30  days  to  comply 
with  these  terms,  at  which  time,  in  case  of  compliance,  he  should  re- 
ceive a  good  and  complete  title  to  the  property,  and  on  failing  to  com- 
ply within  the  30  days,  the  property  was  then  to  be  resold  on  account  of 
the  first  purchaser.'^  The  purchaser  failed  to  give  his  promissory  notes 
within  the  30  days,  or  at  any  time  afterwards.  And  then  the  vendor, 
without  any  resale  of  the  property,  brought  an  action  against  the  pur- 
chaser, contending  that  the  remedy  by  resale  was  merely  cumulative, 
and  did  not  take  away  the  right  of  action  against  the  defendant,  for  his 
violation  of  the  contract.  It  was  however  decided  that  the  vendor 
could  maintain  no  action  upon  the  contract,  without  first  resorting  to  a 
resale  and  ascertaining  the  deficit. 

And  thereupon  the  said  plaintiff  saith,  that  heretofore,  to  wit, 
on  the  24lh  day  of  June  1830,  at  the  said  county  of  H,  to  wit, 
at  the  auction  store  of  E.  Sf  A.  H.  in  the  city  of  R.  in  the  said 
county  of  H.  he  the  said  plaintiff,  put  up  and  exposed  to  sale,  by 
public  auction,  under  the  direction  of  the  said  E.  &f  A.  H.  who 
were  then  auctioneers  in  the  said  city,  and  the  agents  of  the  said 
plaintiff  in  that  behalf,  a  negro  man  slave  named  Christopher^ 
the  property  of  the  said  plaintiff,  then  being  at  the  auction  store 


Declarations  in  assumpsit.  525 

aforesaid,  upon  and  subject  to  the  following  amongst  other  con- 
ditions of  sale,  that  is  to  say,  that  the  highest  bidder  should  be  the 
purchaser,  that  the  purchaser  should  immediately  pay  down  into 
the  hands  of  the  auctioneers,  that  is  to  say,  the  said  E.  ^  A.  H. 
the  amount  of  the  purchase  money,  and  that  the  said  plaintiff 
should  deliver  the  said  slave  to  the  purchaser,  and  give  to  the 
purchaser  a  warranty,  warranting  the  said  slave  against  the 
claims  of  all  persons  whatsoever,  and  likewise  warranting  him 
to  be  sound  and  healthy,  and  free  from  rheumatism.  And  the 
said  plaintiff  further  saith,  that  on  the  said  exposure  to  sale,  to 
wit,  on  the  day  and  year  first  aforesaid,  at  the  county  aforesaid, 
the  said  T.  B.  S.  was  the  highest  bidder  for,  and,  then  and  there, 
became,  and  was,  in  due  manner,  declared  to  be  the  purchaser 
of  the  said  slave,  at  and  for  a  certain  large  sum  of  money,  to 
wit,  the  sum  of  $  343.  And  thereupon,  afterwards,  to  wit,  at  the 
day  and  year  first  aforesaid,  at  the  county  aforesaid,  in  conside- 
ration thereof,  and  that  the  said  plaintiff,  at  the  special  instance 
and  request  of  the  said  T.  B.  S.  had,  then  and  there,  underta- 
ken and  faithfully  promised  the  said  T.  B.  S.  to  perform  and 
fulfil  all  things  in  the  said  conditions  of  sale  contained,  on  the 
part  of  the  vendor  to  be  performed  and  fulfilled,  he  the  said  T. 
B.  S.  undertook  and,  then  and  there,  faithfully  promised  the  said 
plaintiff  to  perform  and  fulfil  every  thing  in  the  said  conditions 
of  sale  on  his  part  and  behalf,  as  such  purchaser  as  aforesaid, 
to  be  performed  and  fulfilled.  And  the  plaintiff  avers,  that  al- 
though he  the  said  plaintiff  for  a  longtime  before  and  upon  and 
after  the  said  24th  day  of  June  1830,  was  ready  and  willing  to 
deliver  the  said  slave  to  the  said  T.  B.  S.  and  to  give  to  the  said 
T.  B.  S.  a  warranty,  warranting  the  said  slave  against  the  claims 
of  all  persons  whatsoever,  and  likewise  warranting  him  to  be 
sound  and  healthy,  and  free  from  rheumatism,  and  afterwards, 
to  wit,  on  the  day  and  year  last  aforesaid,  at  the  county  afore- 
said, offered  to  the  said  T.  B.  S.  upon  his  paying  the  said  pur- 
chase money,  according  to  the  said  terms  and  conditions  of  sale, 
to  deliver  the  said  slave  to  him  the  said  T.  B.  S.  and  to  execute 
to  the  said  T.  B.  S.  a  bill  of  sale  for  the  said  slave,  W'arranting 
and  defending  the  right  and  title  of  the  said  slave  against  the 
claims  of  all  persons  whatsoever,  and  likewise  warranting  him 
sound  and  healthy,  and  more  particularly  free  from  rheumatism, 
yet  the  said  T.  B.  S.  not  regarding  the  said  terms  and  condi- 
tions of  sale,  nor  his  said  promise  and  undertaking,  did  not,  nor 
would,  on  the  said  24th  day  of  June  1830,  or  at  any  other  time, 
pay  the  said  purchase  money  according  to  the  said  terms  and 
conditions  of  sale,  or  any  part  thereof,  but  wholly  neglected  and 
refused  so  to  do,  to  wit,  on  the  said  24th  day  of  June  1830,  at 
the  county  aforesaid,  and  thereupon  the  said  plaintiff  afterwards. 


626  Declarations  in  asstimjjsit. 

and  after  the  said  24lh  day  of  June  1830,  to  wit,  on  the  29th 
day  of  June  1830,  at  the  county  aforesaid,  again  exposed  the 
said  slave  to  sale,  by  public  auction,  under  and  subject  to  certain 
terms  and  conditions  of  sale,  which  were  to  the  same  effect  as 
those  hereinbefore  mentioned,  and  the  said  slave  was,  then  and 
there,  at  such  last  mentioned  exposure  to  sale  as  aforesaid,  re- 
sold for  a  much  less  price  or  sum  of  money  than  the  said  price 
or  sum  for  which  he  had  been  sold  to  the  said  T.  B.  S.  as  afore- 
said, to  wit,  for  the  sum  of  $  318,  whereby  there,  then  and  there, 
was  a  deficiency  between  the  said  price  for  which  the  said  slave 
was  so  sold  to  the  said  T.  B.  S.  as  aforesaid,  and  the  price  for 
which  the  said  slave  v^as  so  sold  on  such  resale  to  a  large 
amount,  to  wit,  to  the  amount  of  $  25,  and  the  charges  incurred 
in  keeping  the  said  slave,  from  the  time  he  was  first  sold  as  afore- 
said until  such  resale,  together  with  the  charges  attending  such 
resale,  then  and  there,  amounted  to  a  certain  other  large  sum  of 
money,  to  wit,  the  sum  of  $  14.32  cents :  of  all  which  said  pre- 
mises the  said  T.  B.  S.  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  county  aforesaid,  had  notice:  And  by  rea- 
son of  the  premises,  he  the  said  T.  B.  S.  then  and  there,  be- 
came liable  to  pay  to  the  said  plaintiff  the  said  several  sums  of 
25  dollars,  and  of  14  dollars  32  cents,  to  wit,  at  the  county  afore- 
said. Yet  the  said  T.  B.  S.  hath  not,  although  he  was  often  re- 
quested so  to  do,  as  yet  paid  the  said  sums  of  25  dollars,  and  14 
dollars  and  32  cents,  or  either  of  them,  or  any  part  thereof,  but, 
so  to  do,  hath  wholly  refused,  and  still  doth  refuse,  to  wit,  at  the 
county  aforesaid. 

Add  common  counts,  according  to  the  form  in  No.  43. 

1st,  for  the  price  and  value  of  a  certain  slave;. 

2dly,  for  money  which  the  defendant  had  become  liable  to  pay  to  the 
plaintiff  for  a  deficiency  betvi^een  the  price  at  which  the  defendant,  be- 
fore that  time  had  become  the  purchaser  from  the  plaintiff  of  a  certain 
slave  bargained  and  sold  to  the  defendant,  at  his  special  instance  and  re- 
quest, and  the  nett  amount  produced  upon  a  resale  of  the  said  slave  af- 
terwards made,  in  consequence  of  a  failure  by  the  defendant  to  comply 
with  the  terms  of  his  said  purchase ; 

3dly,  for  money  lent ; 

4thly,  for  money  paid  ; 

5thly,  for  money  due  on  account  stated ; 

And  then  a  general  conclusion,  according  to  the  form  in  No.  44; 
stating  the  promise  and  breach  as  to  all  except  the  first  count. 


V 


Declarations  in  assumpsit.  627 

23.  By  the  purchaser  of  a  slave  or  other  chattel  upon  the  warranty 

of  title. 

In  an  action  on  a  warranty  of  title  to  a  chattel,  it  is  sufficient  proof 
of  the  warranty  that  the  vendor  affirmed  the  chattel  to  be  his ;  and  the 
action  lies  on  such  affirmation.  Brockenbroiigh,  J.  in  Brown  v.  Shields, 
6  Leigh  445,  6.  citing  3  Stark.  Law  Ev.  part  4.  p.  1661.  Medina  v. 
Stoughton,  1  Salk.  210. 

But  a  count  in  such  action  cannot  be  considered  to  be  in  asstimpsit 
when  it  lays  no  assumpsit  or  promise,  and  does  not  correspond  at  all 
with  the  form  of  declaring  in  assumpsit  upon  a  representation.  Tucker, 
P.  in  Broicn  v.  Shields,  6  Leigh  465. 

24.  By  the  purchaser  of  a  slave  warranted  sound,  who  was  diseased 

at  the  time,  and  remained  so  until  her  death. 

For  that  whereas  the  said  defendant  heretofore,  to  wit,  on  the 
9th  day  of  Decen:iber,  in  the  year  1S22,  in  the  said  county  of 
H.  in  consideration  that  the  said  plaintiff,  at  the  special  instance 
and  request  of  the  said  defendant,  would  buy  of  hinn,  the  said 
defendant,  three  certain  negro  slaves  named  Rose,  Maria  and 
Kendall,  at  and  for  a  certain  price  or  sum  of  money,  to  wit,  the 
sum  of  S  860,  to  be  therefor  paid  by  him  the  said  plaintiff,  he, 
the  said  defendant,  undertook  and,  then  and  there,  faithfully 
promised  the  said  plaintiff  that  the  said  negro  slaves  then  were 
sound.  And  the  said  plaintiff  avers,  that  he,  confiding  in  the 
said  promise  and  undertaking  of  the  said  defendant,  did  after- 
wards, to  wit,  on  the  same  day  and  year  aforesaid,  at  the  parish 
aforesaid,  buy  the  said  negro  slaves  of  the  said  defendant,  and 
then  and  there,  paid  him  for  the  same  the  said  sum  of  $860. 
Nevertheless,  the  said  defendant,  contriving  and  intending  frau- 
dulently to  injure  the  said  plaintiff,  did  not  regard  his  said  pro- 
mise and  undertaking,  so  by  him  made  as  aforesaid,  but  thereby 
craflil}'^  and  subiily  deceived  and  defrauded  the  said  plaintiff  in 
this,  to  wit,  that  the  said  negro  slave  named  Rose,  at  the  time 
of  the  making  of  the  said  promise  and  undertaking  of  the  said 
defendant,  was  not  sound,  but  on  the  contrary  thereof,  was  at 

the  time  unsound  and  diseased,  and  so  remained  until  the 

day  of ,  in  the  year  1823,  when  she  died  :  Whereby  the 

said  plaintiff  was  put  to  great  expense  of  his  money  in  and 
about  the  feeding,  taking  care  of  and  procuring  medical  atten- 
dance upon  the  said  negro  slave,  in  the  whole  amounting  to  a 

large  sum  of  money,  to  wit,  the  sum  of  S . 

And  whereas,  afterwards,  to  wit,  on  the  same  day  and  year 
aforesaid,  in  the  county  aforesaid,  in  consideration  that  the  said 
plaintiff,  at  the  like  special  instance  and  request  of  the  said  de- 


528  Declarations  in  assumpsit. 

fendant  had,  then  and  there,  bought  of  him  the  said  defendant, 
three  certain  other  negro  slaves  named  Rose,  Maria  and  Kendall, 
at  and  for  a  certain  other  price  or  sum  of  money,  then  and 
there,  agreed  upon  between  him,  the  said  plaintiff",  and  the  said 
defendant,  he,  the  said  defendant,  undertook  and,  then  and 
there,  faithfully  promised  the  said  plaintiff"  that  the  said  last 
mentioned  slaves,  at  the  lime  of  the  sale  thereof,  were  sound. 
Nevertheless,  the  said  defendant  contriving  &c.  (as  in  first  count 
to  — )  in  this,  to  wit,  that  the  said  negro  slave  named  Rose,  at 
the  time  of  the  sale  thereof,  was  not  sound,  but  the  said  negro 
slave  was,  then  and  there,  diseased  and  unsound,  and  so  re- 
mained and  continued  until  the day  of ,  in  the  year 

1823,  when  she  died.  Whereby  &c.  (as  in  first  count.)  Where- 
fore the  said  plaintiff"  sailh,  that  he  is  injured  and  has  sustained 

damage  to  the  amount  of  $ ;  and  therefore   he  brings 

his  suit. 

25.  By  the  purchaser  of  a  horse  warranted  sound,  {and  offered  to  he 
returned  upon  being  discovered  to  he  unsound,)  for  the  expense  of 
keeping,  and  the  loss  upon  a  resale. 

In  M'Kenzie  v.  Hancock,  Ryan  &-  Moody  436.  21  Eng.  Com.  Law 
Rep.  484.  Littledale,  J.  in  his  directions  to  the  jury,  said,  that  with  re- 
spect to  the  expenses  of  keeping  the  horse,  though  a  contrary  doctrine 
very  generally  prevailed,  he  was  of  opinion  that  the  plaintiff  was  enti- 
tled to  recover  those  expenses  for  such  a  period  only,  as,  under  all  the 
circumstances  of  the  case,  the  jury  might  fairly  consider  a  reasonable 
time  for  the  purpose  of  reselling  the  horse ;  that  the  practice  of  reco- 
vering damages  for  the  keep  of  the  horse,  in  actions  of  this  sort,  was 
entirely  of  modern  date.  According  to  the  old  doctrine,  it  was  the 
duty  of  the  purchaser,  upon  refusal  of  the  seller  to  rescind  the  contract, 
by  taking  back  the  horse,  to  sell  him  immediately ;  and  for  this  reason, 
declarations  in  actions  upon  warranties,  in  the  old  entries,  contain  no 
statement  of  such  damages.  He  thought,  however,  that  the  plaintiff  was 
entitled  to  recover  these  expenses  for  so  long  a  time  as  might  reasona- 
bly be  occupied  in  endeavouring  to  sell  the  horse  to  the  best  advantage. 

Accordingly,  the  law  upon  the  subject  is  thus  laid  down  in  mr.  Sel- 
wyn's  law  o^ nisi prius,  vol.  I.  p.  657.  tit.  Deceit  I.  2.  "  As  soon  as  the 
unsoundness  is  discovered,  the  buyer  should  immediately  tender  the 
horse  to  the  seller,  and,  if  he  refuses  to  take  him  back,  sell  the  horse  as 
soon  as  possible  for  the  best  price  that  can  be  procured ;  for  the  pur- 
chaser is  entitled  to  recover  for  the  keep  of  the  horse  for  such  time 
only  as  would  be  required  to  resell  the  horse  to  the  best  advantage." 

Chesterman  v.  Lamb,  2  Ad.  &  E.  129.  29  Eng.  Com.  Law  Rep.  48. 
was  an  action  of  assumpsit  on  the  warranty  of  a  horse ;  and  one  of  the 
counts  alleged  that  the  plaintiff  was  put  to  expense  in  kee>ping  the  horse. 
The  horse  was  warranted  sound.  He  was  tendered  back  as  unsound, 
and  being  refused  was  put  at  livery  and  afterwards  sold  by  auction,  (the 
defendant  being  previously  apprised  of  the  intention  so  to  sell  him.) 


Declarations  in  assumpsit.  529 

The  jury,  being  of  opinion  that  the  horse  was  unsound  at  the  time  of 
the  warranty,  found  a  verdict  for  the  difference  between  <£40.  the  price 
given  by  the  plaintiff,  and  23  guineas,  the  sum  produced  upon  the  re- 
sale; and  also  for;£9.  17s.  the  expense  of  keeping  the  horse. 

26.  By  the  purchaser  of  a  horse  vjarranted  sound,  who  proved  to  he 

unsoundj  but  was  not  returned  or  tendered. 

If  a  horse  which  is  warranted  sound  at  the  time  of  sale,  be  proved  to 
have  been  at  that  time  unsound,  an  action  of  assumpsit  lies  upon  the 
warranty,  although  the  horse  has  not  been  returned  to  the  seller,  and  al- 
though no  notice  has  been  given  of  the  unsoundness.  But  a  delay  to 
give  notice  or  make  complaint  of  the  unsoundness,  may  furnish  ground 
for  a  presumption  that  the  horse,  at  the  time  of  the  sale,  had  not  the  de- 
fect complained  of,  and  so  make  the  proof,  on  the  buyer's  part,  more  dif- 
ficult.    Fielder  v.  Starkin,  1  H.  Bl.   17.     Pateshall  v.  Tranter,  3  Ad. 

6  E.  103.  30  Eng.  Com.  Law  Rep.  39. 

Upon  what  principles  the  damages  are  assessed,  see  Watson  v.  Denton, 

7  Car.  &  Payne  85.  32  Eng.  Com.  Law  Rep.  446.  Ellis  v.  Chinnock, 
7  Car.  and  Payne  169.  32  Eng.  Com.  Law  Rep.  482.  Clare  v.  May- 
nard,  7  Car.  &  Payne  741.  32  Eng.  Com.  Law  Rep.  713.  >S^.  C.  6 
Ad.  &L  E.  519.  33  Eng.  Com.  Law  Rep.  137. 

27.  By  the  purchaser  of  seed  warranted  good,  which  were  used  and 

proved  not  to  be  good. 

In  Poulton  V.  Lattimore,  9  Barn.  &  Cress.  259.  17  Eng.  Cojn.  Law 
Rep.  373.  Bayly,  J.  said  :  "  The  seller  warranted  the  seed  to  be  good 
new  growing  seed.  There  was  evidence  to  shew,  and  the  jury  have 
found,  that  it  was  not  good  growing  seed.  It  appears,  however,  that 
after  the  sale,  a  competent  judge  tasted  the  seed,  and  told  the  defendant 
that  it  was  not  good  growing  seed.  The  defendant  did  not  then  give 
notice  to  the  plaintiff  that  it  was  defective  in  quality,  but  he  proceeded 
to  sow  part  and  to  sell  the  residue.  It  is  insisted  that  he  ought  then  to 
have  returned  the  seed,  or  to  have  given  notice  to  the  seller  of  its  defec- 
tive quality.  As  the  plaintiff,  however,  gave  an  express  warranty  that  it 
was  good  growing  seed,  I  think  that  the  defendant  might,  without  re- 
turning it,  shew  it  did  not  correspond  with  the  warranty.  Besides,  the 
buyer  was  not  bound  to  trust  the  assertions  of  third  parties,  and  to  re- 
turn the  seed  and  treat  it  as  if  it  was  bad  seed.  He  was  at  liberty  to 
try  the  seed  and  sow  it.  Probably  without  sowing  it,  the  fact  could  not 
be  ascertained  whether  it  would  ultimately  produce  a  good  crop.  From 
the  nature  of  the  article,  and  of  the  contract  of  warranty,  I  think  the 
vendee  was  not  bound  to  return  the  seed  without  using  it ;  that  by  keep- 
ing it,  he  has  not  precluded  himself  from  bringing  an  action  for  the 
breach  of  the  warranty." 
67 


530  Declarations  in  assumpsit, 

28.  By  the  ^purchaser  of  an  article  sold  for  a  particular  purposct 
upon  the  implied  warranty  that  it  is  fit  for  that  purpose. 

The  opinion  intimated  by  lord  Tenter  den,  in  the  case  of  Gray  S^c.  v. 
Cox  S^c.  4  Barn.  &i.  Cress.  103.  10  Eng.  Com.  Law  Rep.  283.  that  if  a 
person  sells  a  commodity  for  a  particular  purpose,  he  must  be  understood 
to  warrant  it  reasonably  fit  and  proper  for  such  purpose,  has  been  fully 
discussed  upon  a  declaration  framed  tO'Suit  that  opinion,  and  has  re- 
ceived the  sanction  of  the  court  of  common  pleas.  The  decision  was 
made  in  Jones  v.  Bright  and  others,  5  Bingh.  533.  15  Eng.  Com.  Law 
Rep.  529.  "  The  law,"  says  Best,  C.  J.  "  resolves  itself  into  this;  that 
if  a  man  sells  generally,  he  undertakes  that  the  article  sold  is  fit  for  some 
purpose :  if  he  sells  it  for  a  particular  purpose,  he  undertakes  that  it 
shall  be  fit  for  that  particular  purpose." 

In  the  case  of  Jones  v.  Bright  S^c.  copper  was  purchased  for  the  pur- 
pose of  sheathing  a  ship.  It  was  paid  for,  the  copper  was  used,  and  the 
ship  proceeded  on  her  voyage.  The  copper  proved  not  to  be  fit  for  the 
purpose,  and,  though  the  judges  said  the  conduct  of  the  seller  was  free 
of  fraud  and  most  upright,  the  purchaser  recovered  upon  the  ground  of 
the  unfitness  of  the  copper  for  the  purpose  for  which  it  was  obtained. 

29.  For  the  use  and  occupation  of  a  house. 

The  action  of  assumpsit  for  "use  and  occupation  of  land,  by  permis- 
sion of  the  plaintiff,  may  be  maintained  upon  an  express  promise  to  pay  for 
the  use  of  the  land.  Eppes's  ex'ors  v.  Cole  and  wife,  4  H.  &  M.  161. 
And  the  action  also  lies  upon  an  implied,  as  well  as  an  express  promise. 
Sutton  v.  Mandevillc,  1  Munf  407. 

And  thereupon  the  said  plaintiffs  say  that  heretofore,  to  wit, 
on  the  third  day  of  December  1831,  at  R.  to  wit,  in  the  said 
county  of  H.  by  a  certain  agreement,  then  and  there,  made 
between  the  said  plaintiffs  and  the  said  A.  L.  B.  it  was 
agreed  by  and  between  the  said  plaintiffs  and  the  said  A.  L.  B. 
that  the  said  plaintiffs  should  rent  and  deliver  possession  to  the 
said  A.  L.  B.  of  a  certain  inn,  with  its  premises  and  appurte- 
nances, situate  in  the  city  of  R.  and  county  of  H.  whereof  the 
said  plaintiffs  were  then  lawfully  possessed,  and  which  was,  and 
is,  commonly  known  by  the  name  of  the  Eagle  hotel,  to  be  held 
by  the  said  A.  L.  B.  from  the  said  third  day  of  December  1831, 
for  the  term  of  one  year,  at  a  certain  rent  of  five  thousand  dol- 
lars per  annum.  And  the  said  plaintiffs  aver  that  they  did,  then 
and  there,  deliver  the  possession  of  the  said  inn,  with  its  pre- 
mises and  appurtenances,  to  the  said  A.  L.  B.  who  thenceforth 
had,  held  and  occupied  the  same,  for  the  said  term  of  one  year. 
By  reason  whereof  the  said  A.  L.  B.  became  liable,  at  the  ex- 
piration of  the  said  year,  to  pay  to  the  said  plaintiffs  the  said 
sura  of  five  thousand  dollars;  and  being  so  liable,  the  said  A. 


Declarations  in  assumpsit.  631 

L.  B.  in  consideration  thereof,  after  the  expiration  of  the  said 
year,  to  wit,  on  the  said  third  day  of  December  1S32,  at  the 
county  of  H.  undertook,  and,  then  and  there,  faithfully  promised 
the  said  plaintiffs  to  pay  them  the  said  sum  of  money,  when  he 
the  said  A.  L.  B.  should  be  thereto  afterwards  requested. 

And  whereas  also  heretofore,  to  wit,  on  the  third  day  of  De- 
cember 1832,  at  the  said  county  of  H.  the  said  A.  L.  B.  was' 
indebted  to  the  said  plaintiffs  in  the  sum  of  five  thousand  dol- 
lars, for  the  use,  occupation  and  profits  of  a  certain  inn,  com- 
monly called  or  known  by  the  name  of  the  Eagle  hotel,  of  the 
said  plaintiffs,  by  the  said  A.  L.  B.  and  at  his  special  instance 
and  request,  and  by  the  sufferance  and  permission  of  the  said 
plaintiffs,  for  a  long  time  before  then  elapsed,  had,  held,  used, 
occupied,  received  and  taken,  and  being  so  indebted,  the  said 
A.  L.  B.  in  consideration  thereof,  afterwards,  to  wit,  on  the  day 
and  year  last  aforesaid,  at  the  county  aforesaid,  undertook,  and, 
then  and  there,  faithfully  promised  the  said  plaintiffs  to  pay  them 
the  said  sum  of  money  when  he  the  said  A.  L.  B.  should  be  there- 
unto afterwards  requested.  Nevertheless  the  said  A.  L.  B.  not 
regarding  his  said  promises  and  undertakings,  in  the  said  first 
and  second  counts  mentioned,  hath  not,  (although  often  requested 
so  to  do,)  as  yet,  paid,  to  the  said  plaintiffs,  the  said  sums  of  mo- 
ney, in  the  said  first  and  second  counts  mentioned.or  any,  or  either 
of  them,  or  any  part  thereof,  but,  to  pay  them  the  same,  hath  hi- 
therto wholly  neglected, and  refused,  and  still  doth  neglect  and 
refuse. 

Add  common  counts  in  the  form  prescribed  in  No.  43. 

For  the  use  and  occupation  of  a  certain  other  messuage,  with  the  ap- 
purtenances, of  the  said  plaintiffs,  by  the  said  A.  L.  B.  at  his  special 
instance  and  request,  and  by  their  sufferance  and  permission,  for  a  long 
time,  before  then  elapsed,  had,  held,  used,  occupied,  possessed  and  en- 
joyed ;  also. 

For  money  lent ;  money  paid  ;  money  received ;  and  money  found  due 
on  account  stated. 

And  then  conclude  in  the  form  prescribed  in  No.  44. 

30.   On  a  promise  to  pay  the  year''s  fare  of  a  slave  and  furnish  him 

with  clothing. 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the  lOih  day  of 
February  1827,  at  the  said  county  of  H.  in  consideration  that 
the  said  plaintiff,  at  the  special  instance  and  request  of  the  said 
A.  A.  and  C.  J.,  had,  then  and  there,  hired  to  them  the  said  A. 
A.  and  C.  J.  for  the  year  1827,  a  certain  negro  slave  named  H. 
the  property  of  the  said  plaintiff,  they  the  said  A.  A.  and  C.  J* 
promised  to  pay  the  plaintiff,  on  the  first  day  of  January  1828, 


532  Declarations  in  assurfipsit. 

the  sum  of  $42.50  cts.  for  the  hire  of  the  said  negro  man  H.  for 
the  said  year  1827,  and  also  promised  that  the  said  negro  man 
H.  should  be  returned  clothed  in  the  usual  way  that  hirelings 
are  clothed.  And  although  the  said  first  day  of  January  1828 
hath  long  since  elapsed,  yet  the  said  plaintiff'  saith  that  the  said 
A.  A.  and  C.  J.  not  regarding  their  said  promise  and  underta- 
king, have  not,  nor  hath  either  of  them,  paid  to  him  the  said 
plaintiff"  the  said  sum  of  $42.50  cts.  or  any  part  thereof,  and 
that  the  said  A.  A.  and  C.  J.  ha-ve-not,  nor  hath  either  of  them, 
returned  to  the  said  plaintiff"  the  said  negro  man  H.  clothed  in 
the  usual  way  that  hirelings  are  clothed,  but  to  pay  the  said  sum 
of  $  42.50  cts.  or  any  part  thereof,  and  to  clothe,  or  furnish 
clothing  for,  the  said  negro  man  H.  they  have,  and  each  of  them 
hath,  hitherto  wholly  neglected  and  refused. 

And  also  for  this,  to  wit,  that  heretofore,  to  wit,  on  the  said 
lOlh  day  of  February  1827,  at  the  county  of  H.  aforesaid,  in 
consideration  that  the  said  plaintiff",  at  the  special  instance  and 
request  of  the  said  A.  A.  and  C.  J.  had,  then  and  there,  hii-ed  to 
him  the  said  A.  A.,  for  the  year  1827,  on  credit,  a  certain  negro 
man  slave  named  H.  the  propert}'  of  the  said  plaintiff",  they  the 
said  A.  A.  and  C.  J.  undertook,  and,  then  and  there,  faithfully 
promised  the  said  plaintiff" to  pay  him,  on  the  first  day  of  Janu- 
ary 1828,  the  sum  of  $42.50  cts.  for  the  hire  of  the  said  negro 
man  H.  for  the  said  year  1827,  and,  then  and  there,  also  un- 
dertook and  promised  that  the  said  negro  man  H.,  on  the  first 
day  of  January  1S2S,  should  be  returned  to  the  plaintiff",  clothed 
in  I  he  usual  way  that  hirelings  are  clothed.  And  although  &c. 
(like  the  first  count.) 

Add  common  counts  in  the  form  prescribed  in  No.  43. 

For  the  hires  of  divers  slaves,  by  the  said  plaintiff,  before  that  time, 
hired  to  the  said  defendants,  at  their  specialinstance  and  request; 

For  clothing,  by  the  said  plaintiff,  before  that  time,  provided  for,  and 
furnished,  to  divers  slaves,  at  the  special  instance  and  request  of  the  said 
defendants ;   and 

For  money  lent ;  money  paid ;  money  received ;  and  money  due  on  an 
account  stated. 

And  then  conclude  in  the  form  prescribed  in  No.  44. 

*  Though  the  promise  was  in  writing,  it  was  deemed  most  advisable 
not  to  insert  the  words  "  by  their  certain  note  in  writing  bearing  date 
the  day  and  year  aforesaid."  For  if  those  words  be  inserted,  it  seems 
necessary,  under  the  decisions  of  the  court  of  appeals,  after  setting  forth 
the  writing,  to  allege  a  legal  liability  and  a  promise  by  reason  thereof 
The  decisions  alluded  to  are  cited  ante,  p.  502. 


Declarations  in  ass'umpsit.  533 

31.   On  a  i/romise  to  pay  montJdy  hire  for  a  slave. 

For  that  whereas,  heretofore,  to  wit,  on  &c.  at  &c.  in  consi- 
deration that  the  said  plaintiff,  at  the  special  instance  and  re- 
quest of  the  said  S.  B.  would  suffer  a  certain  slave  named 
Charles^  the  properly  of  the  said  plaintiff,  to  serve  the  said  S.  B. 
as  a  hireling,  he  the  said  S.  B.  undertook,  and,  then  and  there, 
faithfully  promised  the  said  plaintiff,  to  pay  him  the  said  plain- 
tiff", for  such  service  of  his  said  slave,  certain  hire,  after  the 
rate  of  eight  dollars  per  month.  And  the  said  plaintiff  avers 
that  he,  confiding  in  the  said  promise  and  undertaking  of  the 
said  S.  B.,  did,  aftervvards,  to  wit,  on  &c.  at  &c.  suffer  his  said 
slave  to  serve  the  said  S.  B.,  and  the  said  slave  did  there  serve 
him  the  said  S.  B.  for  a  long  space  of  time,  to  wit,  for  the  space  of 
twelve  months,  then  next  following,  and  that  the  hire  of"  the  said 
slave,  during  the  time  aforesaid,  and  after  the  rate  aforesaid, 
amounted  to  a  large  sum  of  money,  to  wit,  the  sum  of  $96; 
whereof  the  said  S.  B.  afterwards,  to  wit,  on  &c.  at  &c.  had 
notice. 

32.  On  a  tvriting  promising  to  furnish  the  bond  of  another  person  for 
the  hire  of  a  slave* 

If  the  contract  for  hiring  be  evidenced  by  a  writing  which  states  that 
the  hirer  shall  be  entitled  to  the  bond  of  a  particular  person,  for  the  hire, 
payable  at  the  end  of  the  year,  the  plaintiff  cannot  recover  upon  a  gene- 
ral indebitatus  assumpsit  for  the  hire  of  slaves.  The  special  contract 
does  not  authorize  such  a  recovery,  because  it  is  not  for  the  stated  sum 
due  for  the  hires  of  the  slaves,  but  only  binds  the  party  for  such  damages 
as  might  have  been  assessed  for  a  refusal  to  furnish  the  bond  aforesaid. 
The  special  contract  differs  from  the  evidence  called  for  by  the  indebi- 
tatus assu?npsit  count  also  in  this,  that  the  former  would  have  warranted 
a  suit  before  the  expiration  of  the  year,  upon  a  demand  of  the  bond 
and  refusal  thereof;  whereas  the  case  made  by  the  indebitatus  assumpsit 
count  presupposes  the  lapse  of  the  year  before  the  accruing  of  the  action. 
Wooddy  V.  Flournoy,  6  Munf  506. 

33.  For  services  rendered  as  a  physician. 

The  relation  of  master  and  apprentice  imposes  it  as  a  duty  upon  the 
master  to  provide  medical  attendance  for  the  apprentice,  and,  in  such 
case,  a  physician,  who  renders  medical  service,  may  maintain  an  action 
against  the  master,  upon  his  implied  assumpsit.  Easley  v.  Craddock  Sfc. 
4  Rand.  423.  Notwithstanding  the  legal  obligation  of  the  master,  the 
father  of  the  apprentice  will  be  responsible  to  the  plaintiff,  if  the  service 
was  rendered  at  his  instance,  but  not  otherwise.     Ibid. 

For  that  whereas  the  defendant,  on ,  in  the  county  of 

,  was  indebted  to  the  plaintiff,  in  $ ,  for  advice, 


534  Declarations  in  assumpsit. 

prescriptions  and  visits  to,  and  for  attendance  upon,  and  medi- 
cines prepared  for,  and  administered  to,  tiie  said  R.  D.  and  his 
apprentices,  servants  and  family,  for,  and  towards,  their  cure, 
(whilst  they,  from  time  to  time  before,  respectively  laboured 
under  various  diseases  and  infirmities,)  by  the  said  plaintiff,  as 
a  physician,  at  the  special  instance  and  request  of  the  said  R.  D. 

Add  any  of  the  common  counts  in  the  form  prescribed  in  No.  43.  and 
then  conclude  in  the  form  prescribed  in  No.  44. 

34.  Bij  a  high  sheriff  against  the  administrators  of  his  deputy t  for 
money  received  by  the  deputy,  virtute  oficii.     1  Rob.  Prac.  52. 

In  all  actions  against  sheriffs  for  money  had  and  received  by  them,  by 
virtue  of  their  office,  the  nature  of  the  debt  or  demand  should  be  so  far 
stated  in  the  declaration  as  to  distinguish  it  from  a  private  debt  or  con- 
tract, in  order  to  prevent  surprise.  Overton  and  wife  v.  Hudson,  2 
Wash.  172. 

W.  D.  late  sheriff  of  the  county  of  H.  (who  sues  for  the  be- 
nefit of  J.  P.  B.)  complains  of  /.  H.  and  S.  P.  administrators 
with  the  will  annexed  of  J.  B.  P.  deceased,  in  custody  &c.  of  a 
plea  of  trespass  on  the  case,  for  that  whereas  a  certain  .E.  B. 
executrix  of  T.  B.  who  sued  for  the  benefit  of  W.  L.  heretofore, 
to  wit,  on  the  17th  day  of  March  1S26,  sued  out  of  the  county 
court  of  H.  upon  a  judgment  obtained  in  the  said  court,  a  writ  of 
fieri  facias  against  the  goods  and  chattels  of  F.  L.  deceased,  at 
the  time  of  his  death,  in  the  hands  of  W.  D.  his  executor,  di- 
rected to  the  sheriff  of  H.  county,  by  which  writ  the  said  sheriff 
was  commanded  that  of  the  goods  and  chattels  of  F.  L.  de- 
ceased, at  the  time  of  his  death,  in  the  hands  of  TV.  D.  his  exe- 
cutor, late  in  his  bailiwick,  he  should  cause  to  be  made  $77.33 
cents,  with  six  per  centum  interest  thereon,  to  be  computed  from 
the  1st  day  of  July  1S21  till  paid,  and  $  12.34  cents,  which  to 
E.  B.  executrix  of  T.  B.  who  sued  for  the  benefit  of  W.  L.  in  the 
said  county  court  of  H.  were  adjudged  as  well  for  her  damages 
which  she  sustained  by  occasion  of  the  non-performance  of  a 
certain  promise  and  assumption  by  the  said  L.  in  his  lifetime, 
to  the  said  B.  in  his  lifetime,  made,  as  for  her  costs  by  her  about 
her  suit  in  that  behalf  expended  :  whereof  the  said  Z,.'s  executor, 
was  convict  as  appeared  of  record  ;  and  the  said  sheriff  was  by 
the  said  writ  commanded  to  have  the  said  money  before  the 
justices  of  the  said  county  court  of  H.  at  the  courthouse,  on  the 
first  monday  in  May,  then  next  ensuing,  to  render  to  the  said  B.^s 
executrix,  who  sued  &c.  of  the  damages,  interest  and  costs  afore- 
said ;  and  he  was  also  commanded  to  have,  then  there,  that 


Declarations  in  assumpsit.  635 

writ,  which  said  writ  afterwards,  and  before  the  return  day 

thereof,  to  wit,  on  the day  of ,  in  the  year  1826,  at 

the  said  county  of  H.  was  delivered  to  the  said  J.  B.  P.  who 
then,  and  from  thence  until  and  at  and  after  the  return  day  of 
the  said  writ,  was  a  deputy  for  the  plaintiff,  who  then,  and  from 
thence  until  and  at  and  after  the  said  return  day  of  the  said 
writ,  was  sheriff  of  the  said  county  of  H.  to  be  executed  in  due 
form  of  law.  And  the  plaintiff  sailh  that,  by  virtue  of  the  said 
writ,  the  said  J.  B.  P.  so  being  deputy  sheriff  as  aforesaid,  af- 
terwards, and  before  the  return  day  of  the  said  writ  was  passed, 

to  wit,  on  the day  of  ,  in  the  year  1826,  at  the  said 

county  of  H.  and  within  the  bailiwick  of  the  said  sheriff^  did 
have  and  receive  of  and  from  the  said  W.  D.  executor  as  afore- 
said of  the  said  F.  L.  deceased,  the  sum  of  $  108.21  cents,  that 
being  the  amount  of  the  said  writ,  together  with  the  legal  costs 
attending  the  same.  By  reason  whereof  the  said  /.  B.  P.  de- 
ceased, in  his  lifetime,  became  indebted  to  the  plaintiff  in  the 
said  sum  of  $  103.21  cents  ;  and  being  so  indebted,  he  the  said 
J.  B.  P.  deceased,  in  his  lifetime,  in  consideration  thereof  after- 
wards, to  wit,  on  the  day  and  year  last  aforesaid,  at  the  county 
aforesaid,  undertook,  and,  then  and  there,  faithfully  promised  the 
said  plaintiff  to  pay  him  the  said  last  mentioned  sum  of  money, 
when  he  the  said  J.  B.  P.  should  be  thereunto  aflervirards  re- 
quested. 

And  whereas  also  the  said  J.  B.  P.  deceased,  in  his  lifetime, 
afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the 
county  aforesaid,  was  indebted  to  the  said  plaintiff  in  the  further 
sum  of  $  108.21  cents,  for  so  much  money  by  the  said  J.  B.  P. 
before  that  time,  had  and  received  by  virtue  of  his  office  of  de- 
puty sheriff  of  the  county  of  H.  to  and  for  the  use  of  the  said 
plaintiff  as  the  sheriff  of  the  said  county  of  H.  (the  said  plaintiff, 
then  and  there,  being  sheriff  of  the  said  county  of  H.  at  the 
time  when  the  said  money  was  so  had  and  received  by  the  said 
J.  B.  P.  by  virtue  of  his  said  office  of  deputy  sheriff) ;  and,  being 
so  indebted  to  the  said  plaintiff,  he  the  said  J.  B.  P.  deceased, 
in  his  liletime,  in  consideration  thereof  afterwards,  to  wit,  on  the 
same  day  and  year  last  aforesaid,  at  the  county  aforesaid,  un- 
dertook, and,  then  and  there,  ftiiihfully  promised  the  said  plain- 
tiff to  pay  him  the  said  last  mentioned  sum  of  money  when  he 
the  said  J.  B.  P.  deceased,  should  be  thereunto  afterwards  re- 
quested. 

Nevertheless  the  said  J.  B.  P.  deceased,  in  his  lifetime,  and  the 
said  J.  H.  and  S.  P.  administrators  as  aforesaid,  since  the  death  " 
of  the  said  J.  B.  P.  not  regarding  the  said  several  promises  and 
undertakings  so  made  by  the  said  J.  B.  P.  in  manner  and  form 
aforesaid,  have  not,  nor  hath  either  of  them,  as  yet,  paid  the  said 


536  Declarations  in  assumpsit. 

several  sums  of  money,  or  any,  or  either,  of  them,  or  any  part 
thereof,  to  the  said  plaintiff  (ahhough  often  requested  so  to  do), 
but  to  pay  the  same,  or  any  part  thereof,  to  the  said  plaintiff,  the 
said  J.  B.  F.  deceased,  in  his  lifetime,  wholly  refused,  and  the 
said  J.  H.  and  S.  F.  administrators  as  aforesaid,  and  each  of 
them,  have,  ever  since  the  death  of  the  said  J.  B.  F.  hitherto, 
wholly  refused,  and  still  refuse,  so  to  do,  to  the  damage  of  the 
said  plaintiff  of  $  300  ;  and  therefore  he  brings  suit  &c. 

35.  By  an  officer  who  took  ijroperty  under  execution  and  sold  the 
same  upon  an  agreement  that  he  should  he  indemnified. 

In  the  case  of  Crawford  and  others  v.  JarretVs  adm'r,  2  Leigh  630. 
the  declaration  contained  three  special  counts,  and  the  defendants  de- 
murred to  them.  The  counts  were  adjudged  good,  and  the  demurrer 
thereto  was  overruled.     The  following  precedent  is  taken  from  them  : 

For  that  the  said  E.  J.,  being  one  of  the  constables,  duly  con- 
stituted and  qualified  as  such,  within  the  county  aforesaid,  here- 
tofore, to  wit,  on  the  first  day  of  January  1816,  at  the  county  of 
K.  aforesaid,  at  the  special  instance  and  request  of  the  said  B. 
A.  C.  served  and  levied  seven  several  writs  of  fieri  facias  issued 
and  signed  by  J.  W.  esq.  a  justice  of  the  peace  in  and  for  the 
said  county,  in  favour  of  the  said  B.  A.  C.  as  plaintiff  against 
the  goods  and  chattels  of  a  certain  A.  W.  and  J.  B.  under  and 
by  virtue  of  which  said  several  writs  of  fieri  facias,  at  the  like 
special  instance  and  request  of  the  said  B.  A.  C.  he  the  said  E. 
J.  took,  into  his  possession,  divers  goods  and  chattels,  the  pro- 
perty of  the  said  A.  TV.  and  J.  B.  found  and  being  in  and  upon 
certain  tenements,  and  leasehold  premises,  situated  and  being 
in  the  county  aforesaid,  leased  and  demised  to  the  said  A.  TV. 
and  /.  B.  and  others  by  a  certain  J.  TV.  and  a  certain  J.  A.  and 
S.  S.  out  of  which  leasehold  premises,  and  other  the  tenements, 
certain  rents  were  reserved  and  payable,  and  then  in  arrear  and 
unpaid,  by  the  said  A.  TT^.  and  J.  B.  to  the  said  J.  A.  and  S.  S. 
and  to  the  said  J.  TV.,  and  v^'hich  said  several  goods  and  chattels 
were  then  held  and  taken  as  a  distress  for  the  satisfaction  and 
security  of  said  rents,  and  which  said  rents  so  due,  and  then 
and  there  in  arrear,  they  the  said  J.  A.  and  S.  S.  and  the  said 
J.  TV.  severally  requested  of  the  said  B.  A.  C.  and  of  the  said 
E.  J.  that  they  might  be  paid  the  respective  sums  of  money  so 
to  them  due,  and  in  arrear  as  aforesaid,  that  is  to  say,  to  the  said 
J.  A.  and  S.  S.  the  sum  of  $  1068,  and  to  the  said  J.  TV.  the 
sum  of  $75,  and  the  quantity  of  120  bushels  of  salt,  in  consi- 
deration whereof,  and  on  the  further  consideration  that  the  said 
E.  J.  would  sell  and  dispose  of  the  said  goods  and  chattels 


Declarations  in  assumpsit.  637 

under  and  by  virtue  of  the  said  writs  o^ Jieri  facias  aforesaid, 
and,  out  of  the  money  arising  from  such  sale,  satisfy  and  dis- 
charge the  said  several  writs  of  Jiai  facias,  or  such  money 
thereof  as  the  sale  of  the  said  goods  and  chattels  might  amount 
to,  they  the  said  B.  A.  C,  N.  G.  and  J.  D.  S.  at  the  county 
aforesaid,  on  the  8th  day  of  January  in  the  year  1816,  by  their 
certain  agreement  in  writing,  with  their  several  proper  names 
by  each  of  them  thereunto  subscribed,  the  date  whereof  is  the 
day  and  year  last  aforesaid,  after  reciting  that  the  said  E.  J. 
constable  as  aforesaid  had,  by  virtue  of  seven  executions  in  the 
name  of  the  said  B.  A.  C.  against  the  said  A.  W.  and  J.  B.  le- 
vied the  same  on  the  following  property,  namely,  seven  chairs, 
two  tables,  three  beds  and  furniture,  one  bureau,  one  looking- 
glass,  one  large  and  one  small  trunk,  one  wooden  clock,  one 
cupboard  and  furniture,  two  pots,  two  ovens,  one  tea  kettle  arid 
one  small  pot,  the  sale  of  which  was  forbidden  by  J.  fF.,  and 
the  sale  of  the  balance  of  the  property,  that  is  to  saj',  two  yoke 
of  oxen  and  one  cart  by  the  said  S.  S.,  agreed  and  bound  them- 
selves to  indemnify  the  said  E.  J.  constable  as  aforesaid  agree- 
ably to  law.  And  the  said  E.  J.  in  fact,  saith  that  he  did  sell 
and  dispose  of  the  said  goods  and  chattels  under  and  by  virtue 
of  the  said  several  writs  of feri  facias,  and  did  pay  over  the 
money,  arising  from  such  sale,  to  the  said  B.  A.  C.  in  satisfac- 
tion and  discharge  of  the  said  writs,  amounting  in  the  whole  to 
the  sum  of  $  140,  besides  interest  and  costs.  And  the  said  E. 
J.  further  saith  that  because  of  his  taking  and  selling  the  said 
goods  and  chattels,  under  and  by  virtue  of  the  said  writs  of 
feri  facias  as  aforesaid,  the  said  J.  TV.  brought  and  prosecu'led 
two  several  actions  on  the  case  against  him  the  said  E.J.  before 
the  superior  court  of  law  for  the  said  county,  in  one  of  which 
actions  the  said  J.  JV.  recovered,  by  verdict  of  a  jury  and  by 
judgment  of  the  said  court,  against  the  said  E.  J.  the  sum  of 
SSI  damages  and  S  12.80  cents,  his  costs  by  him  in  that  behalf 
expended,  and  in  the  other  of  which  actions  the  said  /.  W.,  by 
like  verdict  and  judgment,  recovered  against  the  said  E.  J.  the 
further  sum  of  $64.50  cents  damages  and  $13.61  cents,  his 
costs  in  that  behalf  expended.  And  the  said  E.  J.  further  saith 
that  because  of  his  taking  and  selling  the  said  goods  and  chat- 
tels under  and  by  virtue  of  the  said  several  writs  of feri  facias 
the  said  J.  A.  and  S.  S.  brought  and  prosecuted  a  certain  ac- 
tion on  the  case  against  him  the  said  E.  J.  before  the  said  supe- 
rior court  of  law  foriT.  county,  and,  by  a  verdict  of  a  jury  and 
the  judgment  of  the  said  court,  they  the  said  J.  A.  and  S.  S. 
recovered  against  him  the  said  E.J.  the  sum  of  $  1163.40  cents 
damages  for  his  taking  and  selling  the  aforesaid  goods  and  chat- 
tels, and  S  17.29  cents,  their  costs  by  them  about  their  suit  in 
63 


538  Declarations  in  assumpsit. 

that  behalf  expended,  each  and  every  of  which  judgnnents  re- 
main in  full  force  against  the  said  E.  J.,  and,  in  no  wise,  va- 
cated, reversed  or  annulled  except  $581.70  cents,  part  of  the 
last  mentioned  judgment,  which  has  been  released  by  the  plain- 
tiff in  that  cause,  as  will  more  fully  and  at  large  appear,  refe- 
rence being  had  to  the  said  judgments  and  other  proceedings. 
And  the  said  E.  J.  further  saiih  that  the  said  B.  A.  C,  N.  G. 
and  J,  D.  S.  have  not  indemnified  him  agreeably  to  law,  nor 
hath  the  said  B.  A.  C,  N.  G.  or  J.  D.  S.  or  either  of  them,  in 
any  wise,  saved  harmless  or  indemnified  the  said  E.J.  or  made 
and  executed  to  hitn  a  bond  of  indemnification,  against  the  said 
judgment,  in  manner  and  form  as  by  the  said  agreement  pro- 
vided, but  on  the  contrar3Mhe  sa.\d  E.J.  hath  been  compelled  to 
pay  and  satisfy  the  said  judgments  to  the  several  parties  afore- 
said in  whose  favour  the  same  were  rendered. 

And  also  for  that  the  said  E.  J.  being  one  of  the  constables  of 
the  said  county,  duly  appointed  and  qualified  as  such,  on  the 
1st  day  of  January  in  the  year  1816,  at  the  county  aforesaid,  at 
the  special  instance  and  request  of  the  said  B.  A.  C.  and  under 
and  by  virtue  of  seven  writs  o[  Jieri  facias  to  him  the  said  E. 
J.  directed,  issued  and  signed  by  J.  W.  esq.  a  justice  of  the 
peace  in  and  for  the  said  county,  in  favour  of  the  said  B.  A.  C. 
and  against  the  goods  and  chattels  of  a  certain  A.  W.  and  J.  B.j 
levied  upon,  and  took  into  his  possession,  divers  goods  and  chat- 
tels, as  and  for  the  goods  and  chattels  of  the  said  A.  W.  and  J. 
B.,  in  consideration  whereof,  and  on  the  further  consideration  that 
he  the  said  E.  J.  would  sell  and  dispose  of  the  last  mentioned 
goods  and  chattels,  under  and  by  virtue  of  the  last  mentioned 
writs  oi^  feri  facias,  they  the  said  B.  A.  C,.  N.  G.  and  J.  D.  S. 
then  and  there,  undertook  and  faithfully  promised  the  said  E.  J. 
to  indemnify  and  save  him  harmless,  for  the  taking  and  selling 
the  said  last  mentioned  goods  and  chattels,  under  and  in  satis- 
faction of  the  said  last  mentioned  writs  of  feri  facias.  And  the 
said  E.  J.  in  fact  saith,  that  he  did  sell  and  dispose  of  the  said 
goods  and  chattels  last  mentioned,  under  and  by  virtue  of  the 
said  last  mentioned  writs  of  fieti  facias,  and  in  satisfaction 
thereof,  and,  out  of  the  proceeds  of  the  said  sale,  did  pay  and 
satisfy  the  said  writs  of  fieri  facias  to  the  said  B.  A.  C.  And  the 
said  E.  J.  further  saith  that,  because  of  his  taking  and  selling 
the  last  mentioned  goods  and  chattels,  under  and  by  virtue  of 
the  said  last  mentioned  writs  of  fieri  facias,  a  certain  /.  W. 
brought  and  prosecuted  two  several  actions  on  the  case  against 
him  the  said  E.  J.  before  the  superior  court  of  law  for  K.  county, 
in  one  of  which  actions  the  said  J.  TV.  recovered  against  him 
the  said  E.  J.  $81  damages,  and  $  12.80  cents  costs,  and  in  the 
other  of  which  actions  the  said  J.  W.  recovered  against  him  the 


Declarations  in  assumjmt.  639 

said  E.  J.  the  further  sum  of  $  64.50  cents  damages,  and  S  13.61 
cents  costs,  for  taking  and  selling  the  said  last  mentioned  goods 
and  chattels.  And  the  said  E.  J.  further  sailh,  that  because  of 
his  taking  and  selling  the  said  last  mentioned  goods  and  chattels, 
under  and  by  virtue  of  the  said  writs  o^  fieri  facias  last  men- 
tioned, a  certain  J.  A.  and  S.  S.  brought  and  prosecuted  a  cer- 
tain action  on  the  case  against  him  the  said  E.  J.  before  the  said 
superior  court  of  law,  and,  by  the  verdict  of  a  jurj'  and  the 
judgment  of  the  said  court,  they  the  said  J.  A.  and  S.  S.  reco- 
vered against  him  the  said  E.  J.  the  sum  of  $  1163.40  cents  da- 
mages for  his  taking  and  selling  the  last  mentioned  goods  and  chat- 
tels, and  $  17.29  cents  costs,  each  and  every  of  which  Iffst  men- 
tioned judgments  remain  in  full  force,  against  the  said  E.  J.  and 
in  no  wise  vacated,  reversed  or  annulled,  except  $581.70  cents, 
part  of  the  last  mentioned  judgment,  which  was  released  by  the 
plaintiff  in  that  case,  as  will  more  fully  and  at  large  appear  by 
reference  to  the  said  judgments  and  proceedings  now  remaining 
in  the  said  superior  court  of  law.  And  the  said  E.  J.  further 
saith,  that  the  said  B.  A.  C,  N.  G.  and  J.  D.  S.  have  not,  nor  hath 
either  of  them,  in  anywise,  indemnified  him,  or  saved  him  harm- 
less, from  the  effects  of  the  said  judgments,  but  that,  on  the  con- 
trary, he  the  said  E.  J.  hath  been  compelled,  by  the  process  of 
the  law,  to  pay  and  satisfy  the  said  three  last  mentioned  judg- 
ments, together  with  the  costs  thereon. 

And  for  this  also,  to  wit,  that  the  said  E.  J.  being  one  of  the 
constables,  duly  constituted  and  qualified  as  such,  within  the 
county  aforesaid,  heretofore,  to  wit,  on  the  first  day  of  January 
1816,  at  the  county  aforesaid,  at  the  special  instance  and  request 
of  the  said  B.  A.  C.  served  and  levied  other  seven  writs  of  fieri 
facias,  issued  and  signed  by  J.  W.  a  justice  of  the  peace  in  and 
for  the  said  county,  in  favour  of  said  i?. -4.  C.  as  plaintiff  against 
the  goods  and  chattels  of  a  certain  A.  W.  and  .7.  /?.,  under  and 
by  virtue  of  which  said  last  mentioned  several  writs  of  fieri 
facias,  at  the  like  special  instance  and  request  of  the  said  B.  A.  C. 
he  the  said  E.  J.  took  into  his  possession,  divers  other  goods 
and  chattels,  the  property  of  the  said  A.  W.  and  J.  B.  found  and 
being  in  and  upon  certain  tenements  and  leasehold  premises,  si- 
tuated and  being  in  the  county  aforesaid,  leased  and  demised  to 
the  said  A.  W.  and  J.  B.  and  others,  by  a  certain  J.  W,  and  a 
certain  J.  A.  and  S.  S.,  out  of  which  leasehold  premises  and 
other  the  tenements,  certain  rents  were  reserved  and  payable, 
and  then  in  arrear  and  unpaid,  by  the  said  A.  W.  and  J.  B.  to 
the  said  /.  A.  and  S.  S.  and  to  the  said  J.  W.,  and  which  said 
last  mentioned  several  goods  and  chattels,  were  then  held  and 
taken  as  a  distress  for  the  satisfaction  and  security  of  the  said 
rents,  and  which  said  rents  so  due,  and,  then  and  there,  in  arrear, 


540  '        Declarations  in  assumpsit. 

they  the  said  J.  A.  and  S.  S.  and  the  said  J.  TV.  severally 
requested  of  the  said  B.  A.  C.  and  of  the  said  E.  J.  that  they 
might  be  paid  the  respective  sums  of  money  so  to  them  due  and 
in  arrear  as  aforesaid,  that  is  to  say,  to  the  said  J.  A.  and  *S.  S, 
the  sum  of  $  1068,  and  to  the  said  J.  W.  the  sum  of  $75,  and 
the  quantity  of  120  bushels  of  salt,  in  consideration  whereof,  and 
in  further  consideration  that  the  said  E.  J.  would  sell  and  dis- 
pose of  the  said  last  mentioned  goods  and  chattels,  under  and 
by  virtue  of  the  said  last  mentioned  writs  of  Jieri  facias  afore- 
said, ihey  the  said  D.  A.  C.  and  A".  G.  at  the  county  aforesaid, 
on  the  eighth  day  of  January  1816,  by  virtue  of  a  certain  agree- 
ment in  writing,  the  date  whereof  is  the  day  and  year  last  afore- 
said, after  reciting  that  the  said  E.  J.  constable  as  aforesaid,  had, 
by  virtue  of  seven  executions  in  the  name  of  the  said  B.  A.  C. 
against  the  said  J.  W.  and  J.  B.  levied  the  same  on  the  follow- 
ing property,  to  wit,  (here  it  was  specified,)  the  sale  of  which 
was  forbidden  by  J.  TV.  as  to  the  household  furniture,  and  the 
sale  of  the  balance  of  the  property,  that  is  to  say,  two  yoke  of 
oxen  and  one  cart  by  the  said  S.  S.,  agreed  and  bound  themselves 
to  indemnify  the  said  E.  J.  constable  as  aforesaid,  agreeably  to 
law,  and  the  said  defendant  J.  D.  S.  then  and  there,  to  wit,  on 
the  day  and  year  last  aforesaid,  at  the  county  aforesaid,  with  his 
own  proper  hand,  signed  and  subscribed  the  said  last  mentioned 
agreennent,  as  security,  together  with  the  said  N.  G.  to  the  said 
B.  A.  C.  and  thereby,  then  and  there,  became  a  joint  promissor 
with  the  said  B.  A.  C.  and  N.  G.  in  the  said  last  mentioned  agree- 
ment, and  which  said  agreement,  they  the  said  defendants  B.  A. 
C.,  N.  G.  and  J.  D.  S.  then  and  there,  delivered  to  the  said  E. 
J.  as  and  for  their  joint  agreement,  promise  and  undertaking 
to  indemnify  the  said  E.  J.  according  to  the  tenour  and  effect  of 
said  agreement,  for  the  sale  of  the  property  in  the  said  agree- 
ment mentioned.  And  the  said  E.  J.  in  fact  saith,  that  he  did 
sell  and  dispose  of  the  said  goods  and  chattels  last  mentioned, 
under  and  b}'^  virtue  of  the  said  last  mentioned  writs  of  Jieii  fa- 
cias, and  in  satisfaction  thereof,  and,  out  of  the  proceeds  of  the 
said  sale,  did  pay  and  satisfy  the  said  writs  of  fieri  facias  to  the 
said  B.  A.  C.  And  the  said  E.  J.  further  saith,  that  because  of 
his  taking  and  selling  the  said  last  mentioned  goods  and  chattels, 
under  and  by  virtue  of  the  said  last  mentioned  writs  of  feri  fa- 
cias, the  said  J.  TV.  brought  and  prosecuted  two  several  actions 
on  the  case  against  him  the  said  E.  J.  before  the  superior  court 
of  law  for  ^.county,  in  the  one  of  which  actions,  the  said  J.  TV. 
recovered  against  the  said  E.  J.  $81  damages,  and  $  12.80  cts. 
costs,  and  in  the  other  of  which  actions  the  said  J.  TV.  recovered 
against  him  the  said  E.  J.  the  further  sum  of  $64.50  cents  da- 
mages, and  $13.61  cents  costs,  for  taking  and  selling  said  last 


Declarations  in  assumpsit.  541 

mentioned  goods  and  chattels.  And  the  said  iJ.  J.  further  saith, 
that  because  of  his  taking  and  seHing  the  said  last  mentioned 
goods  and  chattels,  under  and  by  virtue  of  the  writs  q{ fieri  fa-^ 
das  last  mentioned,  the  said  J.  A.  and  S.  S.  brought  and  prose- 
cuted a  certain  action  on  the  case  against  him  the  said  E.  J.  be- 
fore the  superior  court  of  law  for  K.  county,  and,  by  the  verdict 
of  the  jury  and  the  judgment  of  the  said  court,  they  the  said  J. 
A.  and  S.  S.  recovered  against  him  the  said  E.  J.  the  sum  of 
$  1163.40  damages,  for  taking  and  selling  the  last  mentioned 
goods  and  chattels,  and  $  17.29  cents  costs,  each  and  every  of 
which  last  mentioned  judgments  remain  in  full  force  against  the 
said  E.  J.,  and,  in  no  wise,  vacated,  reversed  or  annulled,  except 
$  581.70  cts.  half  of  the  damages  in  the  last  mentioned  judgment 
assessed,  which  was  released  by  the  plaintiffs  in  that  cause,  as 
will  more  fully  and  at  large  appear,  by  reference  to  the  said 
judgments  and  proceedings  now  remaining  in  the  said  superior 
court  of  law,  and  of  all  which  said  premises  the  said  defen- 
dants, afterwards,  to  wit,  on  the  1st  day  of  September  1817,  had 
notice,  to  wit,  at  the  county  aforesaid.  And  the  said  E.  J.  fur- 
ther sailh,  that  the  said  B.  A.  C,  N.  G.  and  J.  D.  S.  although 
often  requested,  have  not  indemnified  him  agreeably  to  law,  nor 
have  they  the  said  defendants,  or  either  of  them,  saved  harm- 
less, or  indemnified,  the  said  E.  J.  or  made  and  executed  to  him 
a  bond  of  indemnification,  against  the  said  judgments,  in  man- 
ner and  form  as  by  the  said  agreement  is  provided,  but,  on  the 
contrary,  the  said  E.  J.  hath  been  compelled  to  pay  and  satisfy 
the  said  judgments,  to  the  several  parties  aforesaid,  in  whose 
favour  the  same  were  rendered. 

Where  an  officer  takes  goods  of  a  lessee  in  execution  from  off  the 
leased  premises,  and,  upon  receiving  an  instrument  of  indemnity  from 
the  creditor,  pays  the  proceeds  to  him,  without  discharging  the  landlord's 
claim  for  rent,  if  a  judgment  be  allerwards  obtained  by  the  landlord 
against  the  officer,  such  judgment  is  sufficient  proof  of  the  officer's  being 
damnified,  whether  he  has  paid  it  or  not.  Crawford  Sfc.  v.  Jarrett's  admWy 
2  Leigh  639. 

It  is  not  necessary,  in  such  a  case,  that  the  plaintiff,  before  commenc- 
ing his  action,  should  make  a  demand  upon  the  defendants  to  indemnify 
him.     Crawford  Sfc.  v.  Jarrett's  adm'r,  2  Leigh  633. 

36.  By  a  legatee  upon  a  promise  of  the  executor  to  pay  his  legacy. 

If  an  action  at  law  will  lie  for  a  legacy,  either  upon  an  express  or  im- 
plied promise,  it  is  perfectly  clear  that  it  must  be  brought  against  the 
executor  in  his  individual,  and  not  in  his  representative,  character;  and 
the  judgment  must  be  de  bonis  propriis,  not  de  bonis  testatoris.  Opinion 
of  the  court  in  Kayser,  ez'or  v.  Disher,  9  Leigh  360. 


542  Declarations  in  assumpsit. 

In  the  case  just  cited,  Tucker,  president,  said  he  was  himself  well  sa- 
tisfied, 1.  That  an  action  at  law  against  an  executor  for  a  legacy  does 
not  lie  without  an  express  promise  of  the  executor  to  pay.  2.  That  it 
does  lie  upon  such  promise,  where  there  is  a  good  consideration ;  for 
example,  where  there  are  assets  to  pay  the  legacy.  3.  That  if  the  pro- 
mise of  the  executor  be  unqualified,  it  amounts  to  a  waiver  of  the  re- 
funding bond  which  he  might  have  required  of  the  legatee,  and  removes 
a  great  difficulty  in  the  proceeding  at  law,  4.  That  if  the  promise  be 
on  condition  of  a  refunding  bond  being  given  by  the  legatee,  then,  on 
ordinary  principles,  there  can  be  no  recovery  without  proof  of  the  per- 
formance of  that  condition.  5.  That  no  admission  of  assets,  or  mere 
acknowledgment  of  indebtedness,  without  an  express  promise,  will  sus- 
tain the  action ;  for,  in  those  cases,  the  objection  exists,  if  no  other, 
that  the  executor  has  a  right  to  require  a  refunding  bond  from  the  le- 
gatee, which  a  court  of  law  cannot  compel  him  to  give. 

In  support  of  the  second  of  these  propositions,  viz.  that  an  action  at 
law  lies  against  an  executor  for  a  legacy,  upon  an  express  promise  of  the 
executor,  where  there  is  a  good  consideration,  see  Beecker  v.  JBeeckcr, 
7  Johns.  99.  Van  Orden  v.  Van  Orden,  10  Johns.  30.  Stcasey  v.  Lit- 
tle 4-c.  7  Pick.  296. 

37.   Of  cases  in  which  the  statute  of  frauds ,  requires  a  writing. 

The  act  of  Virginia  to  prevent  frauds  and  perjuries,  provides  that  no 
action  shall  be  brought  whereby  to  charge  any  executor  or  administrator 
upon  any  special  promise  to  answer  any  debt  or  damages  out  of  his  own 
estate,  or  whereby  to  charge  the  defendant  upon  any  special  promise  to 
answer  for  the  debt,  default  or  miscarriage  of  another  person,  or  to 
charge  any  person  upon  any  agreement  made  upon  consideration  of  mar- 
riage, or  upon  any  contract  for  the  sale  of  lands,  tenements  or  heredita- 
ments, or  the  making  any  lease  thereof  for  a  longer  term  than  one  year, 
or  upon  any  agreement  which  is  not  to  be  perforrned  within  the  space 
of  one  year  from  the  making  thereof,  unless  the  promise  or  agreement 
upon  which  such  action  shall  be  brought,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  by  him  thereunto  lawfully  authorized.  1  R. 
C.  1819,  p.  372.  ch.  101.  §  1. 

And  an  act  passed  Feb.  6.  1841,  amending  the  act  concerning  frauds 
and  perjuries,  provides  that  no  action  shall  be  brought  whereby  to  charge 
any  person  upon,  or  by  reason  of,  any  representation  or  assurance  made 
or  given  concerning  or  relating  to  the  character,  credit,  ability,  trade  or 
dealings  of  any  other  person,  to  the  intent  or  purpose  that  such  other 
person  may  obtain  credit,  money  or  goods  upon  the  same,  unless  such 
representation  or  assurance  be  made  in  writing,  signed  by  the  party  to 
be  charged  therewith.  Sess.  acts  1840-41,  p.  78.  ch.  69.  This  act 
will  be  in  force  from  the  first  of  January  1842. 


Declarations  in  assumpsit.  543 

38.  Against  an  executor  oi-  administrator  upon  a  promise  to  paij  a 

debt  of  the  decedent. 

In  order  to  maintain  an  action  against  an  executor,  to  charge  him 
personally  upon  a  promise  to  pay  the  debt  of  his  testator,  it  must  be 
averred  in  the  declaration  that  the  defendant  had  assets,  or  that  the 
plaintiff  forbore  to  sue,  or  that  there  was  some  other  consideration. 
Taliaferro  v.  Rohb  S^c.  2  Call  258. 

If  a  declaration  in  assumpsit,  set  forth  that  the  plaintiff,  being  a  cre- 
ditor of  a  decedent,  applied  for  administration  of  his  estate,  with  a  view 
to  secure  his  debt,  and  the  defendant,  stating  that  he  was  a  creditor 
likewise,  assured  him  that,  if  he  would  withdraw  his  motion  and  suffer 
the  defendant  to  take  the  administration,  he  would  pay  the  plaintiff  his 
debt  out  of  the  first  money  that  should  come  to  his  hands  as  administra- 
tor, "  that  thereupon  the  plaintiff  did  agree  that  he  would  relinquish  his 
right  to  administer,  and  the  defendant  agreed  that  he  would  administer 
and  pay  the  plaintiff  out  of  the  first  money  as  aforesaid,"  and  then  avers 
that  the  defendant  did,  then  and  there  administer ; — such  declaration  is 
defective,  in  not  averring  that  the  plaintiff  did  relinquish  his  pretension 
to  administer,  pursuant  to  the  agreement.  Daniel  v.  Morton,  4  Munf. 
120. 

39.  Upon  a  promise  to  answer  for  the  debt,  default  or  miscarriage  of 

another  person. 

Statute  applies  where  creditor  has  a  double  remedy. — Our 
statute  of  frauds  is  precisely  similar  to  that  of  England,  touching  a 
promise  to  answer  for  the  debt  of  another,  and  the  distinction  between 
an  original  and  collateral  promise  has  been  often,  and  solemnly,  settled 
in  that  country.  That  distinction  seems  to  be  this  :  that  where  the  per- 
son on  whose  behalf  the  promise  is  made  is  not  discharged,  but  the  per- 
son promising  agrees  to  see  the  debt  paid,  so  that  the  promisee  has  a 
double  remedy,  the  promise  is  considered  as  collateral,  and  must  be  in 
writing,  but  where  the  promiser  undertakes  to  become  the  paymaster,  it 
becomes  immediately  his  debt  and  he  is  liable  without  writing.  Roane, 
J.  in  Waggoner  v.  Gray's  adm'rs,  2  H.  &,  M.  611.  Tomlinson  v.  Gell^ 
6  Ad.  &.  E.  564.  33  Eng.  Com.  Law  Rep.  145. 

This  subject  was  again  before  the  court  of  appeals  in  Cutler  v.  Hinton, 
6  Rand.  509.  and  the  principle  acknowledged  that  where  the  promisee 
has  a  double  remedy,  both  against  the  promiser,  and  him  in  whose  be- 
half the  promise  is  made,  such  promise  is  collateral  and  must  be  in 
writing.  In  that  case  a  witness  proved  that  the  promiser  requested  him 
to  tell  a  certain  mercantile  firm,  or  any  other  person  of  whom  his  son- 
in-law  might  wish  to  purchase  goods,  that  he  would  pay  for  his  said  son- 
in-law  to  the  amount  of  $  4000.  The  court  was  of  opinion  that  the 
promisee  had  a  double  remedy ;  for  the  son-in-law  was  to  purchase  the 
goods,  which  of  course  would  render  him  liable  for  them,  and  the  pro- 
miser was  to  pay  the  money  for  his  son-in-law,  not  for  himself.  The 
promise  was  therefore  collateral,  and,  not  being  in  writing,  could  raise 
no  claim  against  the  promiser.     It  was  so  held  in  a  court  of  equity,  and 


544  Declarations  in  assumpsit. 

the  doctrine  laid  down  that,  upon  this  branch  of  the  statute,  there  is  no 
difference  of  construction  between  courts  of  law  and  courts  of  equity. 

Whether  merchant's  books  are  evidence  that  he  had  not  a 
DOUBLE  REMEDY. — That  the  goods  were  charged  by  the  merchants  to 
the  promiser  and  not  to  the  person  on  whose  behalf  the  promise  is  made, 
is  noticed  in  the  cases  as  a  fact  tending  to  shew  to  whom  the  credit 
was  originally  given,  but  judge  Carr,  in  delivering  his  opinion  in  Cutler 
V.  Hinton,  6  Rand.  518.  which  was  concurred  in  by  two  other  judges, 
says,  that  such  entries,  made  in  the  books  of  merchants,  are  better  evi- 
dence against  than  for  them.  Where  they  charge  the  goods  to  the  per- 
son for  whom  they  are  furnished,  it  is  strong  to  shew  that  they  consi- 
dered themselves  dealing  with  him,  and,  (like  the  admissions  of  a  party,) 
may  be  safely  taken  against  them,  but  it  would  be  of  dangerous  tenden- 
cy to  say  that  by  an  entry  made,  by  themselves,  in  their  own  books,  they 
could  change  the  complexion  of  their  case,  and  make  that  an  original, 
which  would,  otherwise,  have  been  a  collateral  promise. 

Consideration  need  not  be  expressed  in  the  writing,  but  may 
BE  proved  dehors. — The  main  question  in  Colgin  v.  Henley,  6  Leigh 
85.  was,  whether  our  statute  of  frauds  makes  it  essential  to  the  validity 
of  a  written  promise  to  pay  the  debt  of  another,  that  it  should  express  on 
its  face  the  consideration  on  which  it  is  founded.  After  examining 
the  english  statute  and  the  decisions  upon  it,  and  adverting  to  the  diffe- 
rence between  the  two  statutes,  pointed  out  in  Violet  v.  Patton,  5 
Cranch  142.  the  judges  of  the  court  of  appeals  came  to  the  conclusion 
that  the  consideration  need  not  be  expressed  in  the  promise,  but  may  be 
proved  at  the  trial,  by  parol  evidence,  as  at  the  common  law. 

What  is  a  promise  to  pay,  and  what  a  sufficient  consideration 
for  it. — There  is  nothing  technical  in  the  word  promise.  It  is  a  word 
in  free  and  common  use.  Any  writing  signed  by  A.  and  addressed  or 
given  to  B.,  by  which  the  writer  declares  his  willingness,  assent  or  inten- 
tion to  pay  B.  a  certain  sum  of  money,  is  a  pronjise  to  pay  that  sum, 
whatever  be  the  form  of  words  in  which  it  is  clothed ;  and  where  the 
words,  of  the  party  promising,  are  at  all  doubtful,  the  situation  and  cir- 
cumstances of  the  parties  will  be  taken  into  consideration,  so  that  a 
correct  judgment  may  be  formed  of  their  respective  intentions  and  un- 
derstanding, at  the  time  of  the  agreement.  Carr,  J.  in  Colgin  v.  Hen- 
ley, 6  Leigh  94. 

That  the  promise  did  not  proceed  upon  the  request  of,  or  any  consi- 
deration moving  to  the  defendant  from,  the  person,  whose  debt  is  pro- 
mised to  be  paid,  is  no  valid  objection.  The  defendant's  engagement  to 
pay  such  debt,  although  unknown  to  that  person,  is  binding  upon  him, 
(the  defendant,)  provided  it  be  founded  on  sufficient  consideration.  And, 
as  to  the  consideration,  it  is  perfectly  clear  that  it  need  not  have  any  re- 
lation to  the  interest  of  the  party  making  the  promise.  It  is  sufficient 
if  it  affect  the  interest  of  the  person  to  whom  it  is  made.  Loss  or  dis- 
advantage to  the  person  to  whom  the  promise  is  made,  is  as  good  a  con- 
sideration, as  benefit  or  advantage  to  the  person  making  it.  Thus,  a 
forbearance  to  sue,  or  the  surceasing  of  an  action,  is  a  good  considera- 
tion, although  that  may  operate  exclusively  for  the  benefit  of  the  origi- 
nal debtor.     Cahcll,  J.  in  Colgin  v.  Henley,  6  Leigh  103,  4,' 


Declarations  in  assumpsit.  545 

Declaration  need  not  set  out  the  writing  but  must  describe 
THE  promise  correctly. — It  is  not  necessary  to  set  out  the  writing  in 
the  declaration.  The  plaintiff  may  give  in  evidence  any  writing,  con- 
taining a  promise,  corresponding  with  that  alleged  in  the  declaration  to 
have  been  made.  31' Williams  v.  Willis,  1  Wash.  199.  Colgin  v.  Hen- 
ley, 6  Leigh  85. 

That  the  declaration  alleges  the  promise  to  have  been  made  on  a  con- 
sideration which  does  not  appear  on  the  face  of  the  writing,  furnishes  no 
reason  for  excluding  the  writing  from  the  jury,  if  the  promise  itself  be 
well  described.      Colgin  v.  Henley,  6  Leigh  85. 

If  promise  was  conditional,  condition  must  appear  to  have 
BEEN  complied  WITH. — Where  a  promise  is  made  by  a  party,  to  pay  the 
debt  of  another,  upon  a  certain  condition,  no  action  can  be  maintained 
upon  the  promise  unless  it  appear  that  the  condition  was  complied  with. 
In  Couch  V.  Hooper,  2  Leigh  557.  the  condition  was  that  the  plaintiff 
should  dismiss  a  suit,  he  was  prosecuting  against  the  original  debtor,  at 
his  the  plaintiff's  costs.  And,  instead  of  doing  that,  the  plaintiff  dis- 
missed the  suit  generally,  leaving  the  defendant,  in  that  suit,  to  pay  his 
portion  of  the  costs.     It  was  held  that  the  plaintiff  could  not  recover. 

And  though  it  was  shewn  that  the  defendant,  after  the  general  dis- 
mission was  entered,  ratified  the  same,  yet  such  ratification  was  held  not 
to  avail  the  plaintiff,  because  that  matter  was  not  alleged  in  the  declara- 
tion, or  put  in  issue  by  the  pleadings.     S.  C. 

Necessary  sometimes  to  aver  notice  to  defendant. — If  the  ac- 
tion be  upon  a  promise  to  pay  for  timber  sold  and  delivered  a  third  per- 
son, the  declaration  will  be  bad,  on  general  demurrer,  unless  it  aver  no- 
tice to  the  defendant  of  the  quantity,  and  value,  of  the  timber  sold  and 
delivered,  because,  without  such  averment,  the  plaintiff  cannot  know 
what  amount  he  has  to  pay,  and  perhaps  it  should  also  aver  notice  of  a 
failure  in  the  third  person  to  pay,  because,  without  such  information,  he 
would  not  know  that  it  was  his  duty  to  pay.  But,  after  verdict,  the 
omission  of  such  averments  must  be  considered  as  cured  by  the  statute 
o^  jeofails.     Pasteur  v.  Parker  and  wife,  3  Rand.  458. 

But  not  necessary  to  aver  demand  upon  third  person  and 
HIS  refusal. — In  such  action,  however,  it  is  not  necessary  to  prove,  on 
the  trial,  a  demand  upon  the  third  person  and  his  refusal  to  pay;  for 
such  third  person,  being  the  debtor,  is  bound  to  seek  his  creditor,  and 
pay  him ;  and,  on  his  failure  to  do  so,  and  notice  thereof,  and  of  the 
amount  due  to  the  defendant,  the  action  may  be  supported  without  any 
thing  more.     S.  C. 

For  that  whereas  on  the  17lh  day  of  January  in  the  year  1828, 
at  the  city  of  R.  in  the  county  aforesaid,  in  consideration  that 
the  said  plaintiffs,  at  the  special  instance  and  request  of  the  said 
6r.  T.  would  endorse  a  certain  promissory  note,  made  by  a 
certain  A.  R.  for  the  sum  of  $507,  dated  at  R.  aforesaid,  on 
the  said  17ih  day  of  January  1828,  payable  lo  the  said  plain- 
tiffs, or  order,  fifty  days  after  date,  without  offset,  negotiable  and 
payable  at  the  Farmers  Bank  of  Virginia,  so  that  the  said  note 
might  be  discounted  at  the  said  bank  for  the  use,  accommoda- 
69 


546  Declarations  in  assumpsit. 

tion  and  benefit  of  the  said  A.  R.  he  the  said  G.  T.  undertook, 
and,  then  and  there,  faithfully  promised  the  said  plaintiffs  that 
the  said  note  should  be  faithfully  and  punctually  paid  by  the 
said  A.  R.  when  it  should  fall  due,  and  that  the  said  T.  would, 
well  and  truly,  indemnify  and  defend  the  said  plamliffs  from  the 
payment  thereof,  and  all  costs  and  damages  thereupon.  And  the 
said  plaintiffs,  in  fact  say,  that  they,  confiding  in  the  said  promise 
and  undertaking  of  the  said  G.  T.  and,  in  consideration  thereof, 
did,  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  R.  in 
the  county  aforesaid,  endorse  the  said  note  with  the  proper  naine 
of  their  firm  aforesaid,  thereby  making  themselves  responsible 
as  endorsers  for  the  payment  thereof,  in  order  that  the  same 
might  be  discounted,  at  the  bank  aforesaid,  for  the  use,  accom- 
modation and  benefit  of  the  said  A.  R.  and  the  said  note  after- 
wards, to  wit,  on  the  said  17th  day  of  January  1828,  at  R.  in 
the  county  aforesaid,  was  discounted,  at  the  said  Farmers  Bank 
of  Virginia,  for  the  use,  accommodation  and  benefit  of  the  said 
A.  R.  and  the  proceeds  of  the  said  note  were  duly  passed  to  her 
credit,  in  the  said  bank.  And  the  said  plaintiffs  further  say, 
that  when  the  said  note  fell  due,  according  to  the  tenour  thereof, 
the  same  was  not  paid  by  the  said  A.  R.  nor  was  any  part  thereof 
so  paid,  according  to  the  promise  and  undertaking  of  the  said 
G.  T.  nor  did  he  indemnify  and  defend  the  said  plaintiflTs  from 
the  payment  thereof,  and  of  all  costs  and  damages  thereupon, 
but,  on  the  contrary,  on  the  10th  day  of  March  in  the  year  1828, 
when  the  said  fifty  days  from  the  date  of  the  said  note  had 
elapsed,  and  the  days  of  grace  allowed  thereupon  according  to 
the  custom  of  merchants  and  the  usages  of  said  bank,  had  ex- 
pired, payment  of  the  said  note  was  duly  demanded  at  the  said 
bank,  and  payment  thereof  not  being  made  by  the  said  A.  R. 
or  any  person  for  her,  the  same  was  duly  protested  for  non-pay- 
ment, and  due  notice  thereof  given  to  the  parties.  Whereupon 
the  said  plaintiflTs  afterwards,  to  wit,  on  the  11th  day  of  March 
1828,  at  R.  in  the  county  aforesaid,  were  compelled  to  pay,  and 
did  pa3%  to  the  said  Farmers  Bank  of  Virginia^  the  whole  con- 
tents of  the  said  note,  and  the  costs  of  protest,  to  wit,  the  sum 
of  $510.25  cents.  Of  all  which  the  said  G.  T.  afterwards,  to 
wit,  on  the  day  of ,  at ,  in  the  county  afore- 
said, had  due  notice.  Yet  the  said  G.  T.  not  regarding  his  said 
promise  and  undertaking,  but  contriving  to  injure  and  deceive 
the  plaintiflTs,  hath  not,  as  yet,  paid  to  them  the  money  so  as 
aforesaid  paid  by  them,  for  the  note  and  protest  aforesaid,  or 
any  part  thereof,  and  hath  not,  in  any  manner,  indemnified  or 
defended  them,  according  to  his  said  promise  and  undertaking, 
though  he  hath  been,  often  thereunto,  specially  requested,  but 
the  said  sum  of  money  remains  wholly  due  and  unpaid  to  the 
plaintiflTs,  and  undefended  by  the  said  G.  T. 


Declaratio7is  in  assumpsit.  647 

And  whereas  afterwards,  to  wit,  on  the day  of  January 

1S2S,  at  R.  in  the  county  aforesaid,  in  consideration  that  the 
said  plaintiffs,  at  the  special  instance  and  request  of  the  said  G. 
T.  would  endorse  a  certain  other  promissory  note  made  by  a 
certain  A.  R.  for  the  sura  of  S  507,  dated  at  R.  aforesaid  on  the 
17th  day  of  January  1S28,  paj'^able  to  the  said  plaintiffs,  or  or- 
der, fifty  days  after  date,  without  offset,  negotiable  and  payable 
at  the  Farmers  Bank  of  Virginia,  so  that  the  note  might  be  dis- 
counted at  the  said  bank,  for  the  use  and  accommodation  of  the 
said  A.  R.  he  the  said  G.  T.  then  and  there,  undertook  and  faith- 
fully promised  the  said  plaintiffs,  that  when  the  said  note  should 
fall  due,  the  money  therein  mentioned  should  be  paid  either  by  the 
said  A.  R.  or  by  the  said  G.  T.  for  her.  And  the  plaintiffs  aver, 
that,  confiding  in  the  said  promise  and  undertaking  of  the  said 
G.  T.  and  in  consideration  thereof,  they  did  afterwards,  to  wit, 
on  the  said  17th  day  of  January  182S,  at  i?.  in  the  county  afore- 
said, endorse  the  said  note,  with  the  proper  name  of  their  firm 
aforesaid,  thereby  making  themselves  responsible  as  endorsers, 
for  the  payment  thereof,  in  order  that  the  same  might  be  discount- 
ed at  the  bank  aforesaid,  for  the  use  and  accommodation  of  the 

said  A.  R.  and  that  afterwards,  to  wit,  on  the day  of , 

at  R.  in  the  county  aforesaid,  the  said  note  was  accordingly  dis- 
counted at  the  said  bank,  for  the  use  and  accommodation  of  the 
said  A.  R.  and  the  proceeds  thereof  duly  passed  to  her  credit 
on  the  books  of  the  said  bank.  And  the  said  plaintiffs  further 
aver,  that  when  the  said  note  fell  due,  the  money  therein  men- 
tioned was  not  paid  by  the  said  A.  R.  or  by  the  said  G.  T.  for 
her,  according  to  the  promise  and  undertaking  of  the  said  de- 
fendant, but,  on  the  contrary,  when  the  same  became  due,  and 
was  payable,  according  to  the  tenour  thereof,  and  according  to 
the  custom  of  merchants  and  of  the  said  bank,  to  wit,  on  the 
10th  da}'  of  March  1828,  at  R.  in  the  county  aforesaid,  payment 
of  the  said  note  was  duly  demanded  at  the  said  bank,  and,  pay- 
ment thereof  not  being  made  by  the  said  A.  R.  or  by  the  said 
defendant,  or  by  any  other  person  for  them,  or  either  of  them, 
the  same  was  duly  protested  for  non-payment,  and  notice  thereof 
duly  given  to  all  the  parties.  Whereupon  the  said  plaintifl^s, 
afterwards,  to  wit,  on  the  11th  day  of  March  1828,  at  R.  in  the 
county  aforesaid,  were  compelled  to  pay,  and  did  pay,  to  the 
said  bank,  the  mone}^  mentioned  in  the  said  note,  with  the  legal 
costs  of  the  protest  thereof,  being  the  sum  of  $510.25  cents. 

Of  all  which  the  said  defendant,  afterwards,  to  wit,  on  the 

day  of ,  at ,  in  the  county  aforesaid,  had  due  no- 
tice. By  reason  whereof  the  said  defendant  became  liable  to 
pay,  to  the  plaintifl^s,  the  said  sum  of  $  510.25  cents,  whensoever 
after  he  should  be  thereunto  requested.   Yet  the  said  defendant, 


548  Declarations  in  assumpsit. 

not  regarding  his  said  promise  and  undertaking,  but,  contriving 
to  injure  and  deceive  the  plaintiffs,  hath  not  paid  to  the  plain- 
tiffs the  said  sum  of  money  last  mentioned,  or  any  part  thereof, 
and  hath,  in  no  wise,  kept  and  performed  his  said  promise  and 
undertaking,  though  he  hath  been  often  thereunto  specially  re- 
quested, but  the  said  sum  of  money  yet  remains  altogether  due 
and  unpaid  to  the  plaintiffs,  and  the  said  promise  and  under- 
taking of  the  defendant  remains  altogether  unperformed. 

And  whereas  afterwards,  to  wit,  on  the day  of  Janu- 
ary 1828,  at  R.  in  the  county  aforesaid,  a  certain  A.  R.  was  in- 
debted to  the  plaintiffs  in  the  sum  of  S507,  then  due  and  un- 
paid, and  the  said  G.  T.  was  desirous  that  the  said  plaintiffs 
should  forbear  and  give  day  of  payment  to  the  said  A.  R.  for 

the  money  due  as  aforesaid,  and  thereupon,  on  the  day  of 

January  1S2S,  at  R.  in  the  county  aforesaid,  in  consideration  of 
the  premises,  and  that  the  said  plaintiffs,  at  the  special  instance 
and  request  of  the  said  G.  T.  would  forbear  and  give  day  of 
payment  to  the  said  A.  R.  for  the  said  sum  of  $507,  for  fifty 
days,  from  and  after  the  17th  day  of  January  1828,  and  would 
take  from  the  said  A.  R.  for  the  payment  thereof,  a  note  dated 
at  R.  on  the  said  17lh  day  of  January  1828,  payable  fifty  days 
after  date  to  the  said  plaintiffs,  without  offset,  negotiable  and 
payable  at  the  Farmers  Bank  of  Virginia,  he  the  said  G.  T.  un- 
dertook, and,  then  and  there,  faithfully  promised  the  said  plain- 
tiffs that  the  said  note,  when  it  fell  due,  according  to  its  tenour, 
and  to  the  custom  of  merchants,  and  the  usage  of  the  said  bank, 
should  be  punctually  paid.  And  the  said  plaintiffs  aver  that, 
confiding  in  the  said  promise  and  undertaking  of  the  said  G.  T. 
and  in  consideration  thereof,  they  did  forbear  and  give  day  of 
payment  to  the  said  A.  R.  for  the  said  sum  of  $507,  for  fifty 
days  from  and  after  the  said  17th  day  of  January  1828,  and  did 
take  from  the  said  A.  R.  a  note  dated  at  R.  on  the  said  17th 
day  of  January  1828,  for  the  payment  of  the  said  sum  of  $507, 
payable  fifty  days  afterdate  to  the  said  plaintiffs,  without  offset, 
negotiable  and  payable  at  the  said  Farmers  Bank  of  Virginia., 

of  which  the  said  G.  T.  afterwards,  to  wit,  on  the day 

of  January  1828,  at ,  in  the  county  aforesaid,  had  due 

notice.  And  the  plaintiffs  further  aver  that  the  said  note,  when 
it  fell  due  as  aforesaid,  was  not  paid,  according  to  the  promise 
and  undertaking  of  the  G.  T.,  but,  on  the  contrary,  on  the  10th 
day  of  March  1828,  when  the  said  note,  according  to  its  tenour, 
and  according  to  the  custom  of  merchants,  and  the  usage  of  the 
said  bank,  was  due  and  payable,  payment  thereof  was  duly  de- 
manded at  the  bank  aforesaid,  and,  payment  not  being  made, 
the  same  was  duly  protested  for  non-payment,  and  notice 
thereof  duly   given   to   the   parties.     By  reason   whereof  the 


Declarations  i:i  assumpsit.  549 

plaintiffs  were  compelled  to  take  up  the  said  note,  and  pay  the 
contents  thereof  to  the  said  Farmers  Bank  of  Virginia,  where 
the  same  had  been  discounted,  and  to  pa}'^  the  additional  sum 
of  $3.25  cents,  the  legal  costs  of  the  protest  aforesaid.     Of  all 

which  the  said  defendant,  afterwards,  to  wit,  on  the day 

of  ,  in  the  county  aforesaid,  had   notice.     Whereby  the 

said  defendant  became  bound  to  pay  the  said  plaintiffs  the  said 
sum  of  $507,  and  the  said  further  sum  of  $3.25  cents,  when- 
ever he  should  be,  thereunto,  afterwards  requested.  Yet  the 
said  defendant,  not  regarding  his  said  promise  and  undertaking, 
but  contriving  to  deceive  and  injure  the  plaintifTs,  has  not  paid, 
to  them,  the  said  last  mentioned  sums  of  money,  or  any  part 
thereof,  and  has  not,  in  any  manner,  kept  and  performed  his 
said  promise  and  undertaking,  though  often  thereunto  specially 
requested,  but  the  said  sums  of  money  to  pay,  and  the  said 
promise  and  undertaking  to  keep  and  perform,  has,  altogether, 
failed  and  refused,  leaving  the  said  sums  of  money  still  alto- 
gether due  and  unpaid  to  the  plaintiffs. 

Some  of  the  common  counts  can  be  added  in  the  form  prescribed  in 
No.  43.  and  the  declaration  concluded  in  the  form  prescribed  in  No.  44. 

40.  For  money  agreed  to  be  loaid  in  consideration  of  ma7'riage. 

If,  in  an  action  against  an  executor,  the  declaration  states  a  promise 
by  the  testator  to  give  the  plaintiff  as  much  as  he  would  give  to  any  of 
his  children,  and  alleges  a  breach  of  the  promise,  it  is  not  sufficient  un- 
less it  aver  the  quantity  or  quality  of  the  gifts  made  by  the  testator  to 
his  own  children,  or  at  what  time  they  were  made,  so  as  to  reduce  the 
demand  to  some  kind  of  certainty.  Smith  v.  Mickle's  ex' or,  1  Wash.  135. 

If  the  declaration  states  a  promise  by  the  defendant  to  do  equal  jus- 
tice to  all  his  daughters,  as  it  should  be  convenient  to  him,  and  con- 
cludes with  a  general  breach,  it  is  not  sufficient.  There  should  certainly 
be  an  averment  that  the  defendant  had  given  something  to  the  rest  of 
his  daughters,  and  perhaps  the  declaration  should  also  allege  that  it  was 
convenient  for  him  to  make  an  advancement  to  the  plaintiff.  Chichester 
V.  Vass,  1  Call  83. 

41.    Upon  a  contract  for  the  sale  of  lands. 

In  Hoskins  v.  ^¥right,  1  H.  &  M.  377.  the  first  count  in  the  decla- 
ration was  a  general  indebitatus  assumpsit  for  a  negro  slave,  a  tract  of 
land,  divers  sums  of  money  had  and  received,  and  divers  sums  of  money 
laid  out  and  expended.  Judge  Lyons  asked  whether  general  indebitatus 
assumpsit  would  lie  for  the  price  of  a  tract  of  land.  He  said,  he  had 
always  understood  the  practice  to  be,  to  bring  a  special  action,  stating 
the  circumstances  of  the  contract. 


550  Declarations  in  assumjjsit. 

In  Moss  V.  Stipp,  3  Munf.  159.  the  amended  declaration  set  forth  the 
asreement  particularly,  and  the  pleadings  terminated  in .  demurrer. 
Judgment  having  been  given  on  those  pleadings,  for  the  plaintiff,  the 
declaration  may  be  referred  to  as  a  precedent.  It  is  given  verbatim  in 
the  report,  pages  161,  2,  3. 

42.    Upon  an  agreement  which  is  not  to  he  performed  within  one  year. 

The  statute  of  frauds  was  passed  in  1677,  and  fifteen  years  afterwards 
this  clause  of  the  statute  received  a  judicial  construction.  In  Peter 
and  Compton,  Skinn.  353.  the  defendant  promised  for  one  guinea,  to 
give  the  plaintiff  so  many  at  the  day  of  his  marriage.  Holt,  C.  J.  ad- 
vised with  all  the  judges,  "  and  by  the  great  opinion,  (for  there  was  di- 
versity of  opinion,  and  his  own  was  contra,)  where  the  agreement  is  to 
be  performed  upon  a  contingent,  and  it  does  not  appear  within  the 
agreement  that  it  is  to  be  performed  after  a  year,  there  a  note  in  writing 
is  not  necessary,  for  the  contingent  might  happen  within  the  year,  but 
where  it  appears  by  the  whole  tenour  of  the  agreement  that  it  is  to  be 
performed  after  the  year,  there  a  note  is  necessary ;  otherwise  not." 

An  explanation  of  this  decision,  and  of  Holt's  opinion,  is  given  in 
Smith  V.  Westall,  1  Ld.  Raym.  316.  decided  about  five  years  afterwards. 
It  is  said  by  Holt,  "  that  if  the  marriage  had  taken  effect  within  the  year, 
they  all  agreed  that  no  writing  was  necessary,  but,  in  the  case  before 
them,  the  marriage  did  not  happen  within  the  year,  but  nine  years  after 
the  promise ;  and  therefore  he  was  of  opinion  that  it  ought  to  have  been 
in  writing,  because  the  design  of  the  statute  was,  not  to  trust  to  the 
memory  of  witnesses  for  a  longer  time  than  one  year  ;  but  the  majority 
of  the  judges  were  of  opinion  that  it  was  not  within  the  intent  of  the 
statute  of  frauds." 

The  following  cases  have  been  decided  since,  Fenton  v.  Emhlcrs,  1 
W.  Bl.  353.  3  Burr.  1278.  Boy  dell  v.  Drummond,il  East.  142.  Brace- 
girdle  v.  Heald,  1  Barn.  &  Aid.  722.  Wells  v.  Horton,  4  Bingh.  40.  13 
Eng.  Com.  Law  Rep.  332.  Williams  v.  Jones,  5  Barn.  &.  Cress.  108. 
11  Eng.  Com.  Law  Rep.  169.  Bush  v.  Earl  of  Liverpool,  9  Barn.  &- 
Cress.  392.  17  Eng.  Com.  Law  Rep.  404. 

43.   Common  counts. 

The  form  prescribed  by  the  judges  of  England,  is  as  follows  : 

1.  For  goods. — For  that  whereas  the  defendant  on 


in  the  county  of ,  was  indebted  to.  the  plaintiff,  in  $ , 

for  the  price  and  value  of  goods,  then  and  there,  bargained  and 
sold,  {or  sold  and  delivered,)  by  the  plaintiff  to  the  defendant, 
at  his  request ; 

2.  For  work  and  materials — and  in  $ ,  for  the  price 

and  value  of  work,  then  and  there,  done,  and  materials  for  the 
sanae  provided,  by  the  plaintiff  for  the  defendant,  at  his  request ; 

3.  For  money  lent — and  in  $ ,  for  n:ioney  then  and 

there,  lent  by  "the  plaintiff  to  the  defendant,  at  his  request ; 


Declarations  in  assumpsit.  551 

4.  For  money  paid — and  in  $ for  money,  then  and 

there,  paid  by  the  plainliff  tor  the  use  of  the  defendant,  at  his 
request ; 

5.  For  money  received — and  in  S for  money,  then 

and  there  received  by  the  defendant,  for  the  use  of  the  plaintiff; 

6.  For  money  found  due  on  account  stated — and  in 
$ ,  for  money  found  due,  from  the  defendant,  to  the  plain- 
tiff, on  an  account,  then  and  there  staled,  between  them. 

1.  For  goods.  The  principle  on  which  the  cases  have  been  decided, 
as  to  the  proper  form  of  declaring,  where  the  original  contract  has  been 
executory,  but  the  period  of  credit  has  expired,  or  condition  has  been 
performed,  is,  not  that  the  law  alters  the  mode  of  declaring  on  the  ori- 
ginal contract,  and  states  it  not  according  to  the  fact,  but,  that  it  con- 
clusively infers  that  simple  contract  to  pay  the  price  for  goods  sold  and 
delivered,  which  would  arise  upon  the  facts  of  a  sale  and  delivery,  with- 
out any  special  circumstances  accompanying  them.  He  who  seeks  to 
disturb  that  inference  must  not  content  himself  with  merely  shewing 
conditions,  or  other  special  provisions,  forming  part  of  the  contract  at 
the  time  of  its  being  entered  into.  He  must  shew  them  in  existence  and 
operation  at  the  time  of  action  brought.  If  not,  they  may  be  struck  out 
of  consideration,  and  the  contract  treated  as  originally  simple,  uncondi- 
tional and  executed.  Opinion  of  court  in  Beverley  v.  Lincoln,  6  Ad. 
&,  E.  829.  33  Eng.  Com.  Law  Rep.  222. 

2.  With  respect  to  debts  for  work  and  labour,  or  other  personal  ser- 
vices, the  rule  is,  that  however  special  the  agreement  was,  yet  if  it  was  not 
under  seal,  and  the  terras  of  it  have  been  performed  on  the  plaintiff's 
part,  and  the  remuneration  was  to  be  in  money,  the  party  may  declare 
either  specially  on  the  original  executory  agreement,  or  in  indebitatus 
assumpsit  on  the  express  promise  to  remunerate,  (if  there  was  one,)  or 
on  the  promise  which  the  law  implies  on  the  execution  of  the  agreement. 
But  this  rule,  so  far  as  relates  to  the  indebitatus  assumpsit  count  has 
never  been  carried  further  than  to  those  cases  where  the  remuneration, 
contemplated  by  the  parties,  was  in  money.  Where  the  remuneration 
was  not  to  be  in  money,  but  was  to  be  in  any  other  kind  of  personal 
property,  or  in  personal  services,  or  in  the  doing  any  collateral  act, 
(as  the  delivery  of  a  bond,  or  the  like,)  there,  the  general  indebitatus 
assumpsit  count  is  not  sufficient,  but  the  declaration  must  be  special. 
Cabell,  J.  in  Brooks  v.  Scott's  ex'or,  2  Munf  345.  The  rule  laid  down 
in  this  case,  was  approved  in  the  late  case  o(  Broton  S^-  Rives  v.  Ralston 
4*  Pleasants,  9  Leigh  532.  See  also,  Wheeler  v.  Curtis  S^c.  11  Wend. 
653. 

3.  For  money  lent.  In  England,  it  frequently  happens  that  papers 
which  cannot  be  received  in  support  of  a  declaration  counting  upon 
them  as  promissory  notes,  are  admitted  in  connection  with  other  evi- 
dence, under  a  count  for  money  lent.  Thus,  Childers  v.  Boulnois,  1  Dow. 
&  Ry.  N.  P.  Cas.  S.  16  Eng.  Com.  Law  Rep.  411.  was  assumpsit  for 
money  lent,  and  in  support  of  the  claim,  the  plaintiff  produced  two 
slips  of  paper,  signed  by  the  defendant,  in  the  following  terms :  "  I.  O. 
U.  £  400."  and  "  I.  O.  U.  £  250."  but  neither  of  them  having  any  stamp, 


552  Declarations  in  assumpsit. 

date  or  address.  This  written  evidence,  and  some  parol  evidence,  of  a 
conversation  about  money,  between  the  plaintiff  and  defendant,  were 
permitted  to  go  to  the  jury. 

4.  For  money  paid.  Where  two  parties  are  jointly  liable  for  a  debt, 
and  one  of  them  pays  the  whole,  he  may  recover  a  moiety  of  the  debt, 
under  a  count  for  money  paid  and  advanced.  Harris  v.  Harris,  2  Rand. 
437. 

Where  one  person  pays  money,  at  the  request  of  another,  and  upon 
his  promise  to  repay  it,  such  promise  is  obligatory,  whether  the  person 
who  made  the  request  was  bound  to  pay  the  money  or  not.  Mosdey  v. 
Boush  4-c.  4  Rand.  392. 

5.  For  money  received.  Where  a  defendant  is  bound,  ex  cequo  et  bono, 
to  restore  to  the  plaintiff  money  which  has  come  to  his  hands,  the  action 
of  assumpsit,  for  money  had  and  received,  is  the  proper  action  to  compel 
him  to  do  so.     Broekenhrough  v.  Ward's  adm'r,  4  Rand.  352. 

The  plaintiff  cannot,  in  such  an  action,  recover  back  money  levied, 
by  a  sheriff,  under  a  jieri  facias,  issued  upon  a  judgment,  which  was 
afterwards  reversed,  without  proving  that  the  money  was  received  by  the 
defendant,  or  applied  to  his  use.     Isom  v.  Johns,  2  Mimf.  272. 

The  assignor  is  liable  merely  for  the  money  he  has  received  for  a  con- 
sideration that  has  failed,  and  the  action  of  indebitatus  assumpsit  is  pe- 
culiarly appropriate  against  him.  Tucker,  P.  in  Drane  v..  Scholfield,  6 
Leigh  397.  Hence,  if  there  is  a  variance  in  the  assignment  offered  in 
evidence  from  that  stated  in  the  declaration,  the  note,  with  the  assign- 
ment, is  nevertheless  proper  evidence  on  the  general  count  for  money 
had  and  received.     Roane,  J.  in  M' Williams  v.  Smith,  1  Call  125. 

Even  where  the  action  is  by  an  assignee  against  a  remote  assignor, 
the  opinion  has  been  expressed  that  the  assignee  may  recover  upon  the 
general  counts  for  money  had  and  received,  and  for  money  laid  out  and 
expended.     Opinion  of  Tucker,  P.  in  Drane  v.  Scholfield,  6  Leigh  395. 

Although  in  a  count  for  money  had  and  received,  the  sum  in  which 
the  defendant  is  alleged  to  be  indebted,  is  left  blank,  it  will,  after  verdict, 
be  sufficient  to  support  the  action,  if  damages  are  laid  in  the  declaration 
to  a  sufficient  amount.     Hall  v.  Smith,  3  Munf.  550. 

How  FAR  BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES  ARE  EVIDENCE 
UNDER  THE  COUNTS   FOR    MONEY  LENT,  PAID  AND    RECEIVED. A  promis- 

sory  note,  which  states  a  consideration  on  the  face  of  it,  or  purports  to  be 
for  value  received,  though  it  be  not  negotiable,  is  admissible  evidence  for 
the  payee  against  the  maker,  under  the  money  counts.  Smith's  adm'r  v. 
Smith,  2  Johns.  235.  Arnold  v.  Crane,  8  Johns.  30.  Sexton  ^c.  v.  John- 
son,  10  Johns.  418.  Wells  v.  Girling,  1  Gow  21.  note.  5  Eng.  Com.  Law 
Rep.  446.  So,  too,  the  common  counts  may  avail  in  an  action  against 
the  drawer  of  a  bill  or  order,  by  the  payee,  for  there  is  privity  between 
them.     See  Jollife  v.  Higgins,  6  Munf.  3. 

The  authorities  also  shew  that  a  count  for  money  had  and  received, 
may  be  maintained  upon  a  negotiable  promissory  note,  endorsed  by  the 
party  against  whom  the  action  is  brought  to  the  party  who  brings  the 
action.  State  Bank  v.  Hurd,  12  Mass.  R.  172.  For  the  endorsement  is 
prima  facie  evidence  of  a  receipt  of  money  from  the  holders  by  the  en- 
dorser, but  the  presumption,  arising  from  the  endorsement,  may  be  de- 
stroyed by  shewing  that  the  money  was  paid,  not  to  the  endorser,  but  to 


Declarations  in  assumpsit.  553 

the  maker  himself,  and  for  his  sole  use.  Page's  administrator  v.  The 
Bank  of  Alexandria,  7  Wheat .  35. 

In  New  York,  it  is  held  that  when  a  bill  or  check  is  payable  to  bearer, 
the  plaintiff,  whether  the  first  or  a  subsequent  bearer,  stands  in  the  same 
situation  as  the  payee  of  any  other  bill.  Cruger  v.  Armstrong  S^c.  3 
Johns.  Cas.  5.  Pierce  v.  Crafts,  12  Johns.  90.  Mack  v.  Spencers,  4 
Wend.  411.  These  decisions  are  opposed  to  the  opinion  expressed  by 
lord  Ellenhorough  in  JVai/nain  v.  Bend,  1  Campl.  175.  There,  the  pro- 
missory note  was  to  L.  Toader,  or  bearer,  and  the  plaintiff,  being  the 
bearer,  contended  that  he  might  recover  under  the  count  for  money  had 
and  received.  But  as  the  plaintiff  was  not  an  original  party  to  the  bill, 
and  there  was  no  evidence  of  any  value  being  received  by  the  defendant 
from  him,  lord  Ellenhorough  was  of  opinion  that  he  could  not  recover 
under  any  of  the  money  counts. 

In  Weld  V.  i^i5^cr,  4  Pick.  421.  there  were  counts  on  promissory 
notes,  and  for  money  lent  and  money  paid ;  and  it  was  held  that  the  en- 
dorsee could  give  in  evidence  against  the  maker,  promissory  notes,  under 
the  money  counts.  In  Rochcfelhr  v.  Robison,  17  Wend.  20G.  the  ques- 
tion was  whether  in  an  action  by  the  endorsee  against  the  maker,  a  pro- 
missory note  could  be  given  in  evidence  under  the  count  for  money  lent, 
and  it  was  held  that  it  could  not.  The  court  however  express  the  opi- 
nion, that  the  note  would  have  been  proper  evidence  under  other  money 
counts.  The  suggestion  is  thrown  out  that  the  money  paid  by  the  en- 
dorsee to  the  person  from  whom  he  receives  the  note,  may  be  regarded 
as  money  paid  to  the  use  of  the  maker.  And  it  is  said  there  can  be  no 
question  that  the  money  would  have  been  admissible  under  a  count  for 
money  had  and  received  by  the  defendant  to  the  plaintiff's  use.  These 
decisions  of  the  courts  of  Massachusetts  and  Neta  York,  are  opposed  to 
the  recent  english  decisions.  In  Eion  v.  Russell,  4  M.  &  S.  503.  the 
action  was  by  the  endorsee  against  the  maker  of  a  promissory  note,  and 
the  plaintiff  was  nonsuited  because  the  note  was  misdescribed  in  the  de- 
claration, although  there  were  money  counts ;  it  being  conceded  that 
they  would  not  help  him.  So  in  Bentley  S^c.  v.  Northhouse,  1  Mood. 
&  Malk.  66.  22  Eng.  Com.  Law  Rep.  251.  the  action  being  of  the  same 
nature,  lord  Tentcrden,  C.  J.  said,  the  circumstance  of  the  plaintiff  being 
an  endorsee,  would  prevent  him  from  recovering  on  the  money  counts. 
Again,  in  Eales  v.  Dicker,  1  Mood.  &,  Malk.  324.  32  Eng.  Com.  Law 
Rep.  323.  where  the  action  was  by  the  endorsee  against  the  acceptor  of 
a  bill,  the  plaintiff  being  unable  to  proceed  on  the  counts  upon  the  bill, 
because  of  a  variance  in  the  mode  of  statement,  and  there  being  the 
usual  money  counts,  Follett  for  the  plaintiff  proposed  to  give  the  bill, 
which  was  admitted  to  be  the  defendant's  acceptance,  in  evidence  on  the 
count  for  money  had  and  received.  But  Littledale,  J.  said,  he  was  de- 
cidedly of  opinion  that  the  bill  was  not  evidence  of  money  had  and  re- 
ceived by  the  acceptor  to  the  use  of  the  holder. 

6.  On  account  stated.  If  there  be  an  acknowledgment  by  the  defen- 
dant of  a  debt,  due  upon  any  account,  it  is  sufficient  to  enable  the  plain- 
tiff to  recover  upon  the  count  on  an  account  stated.  Knowles  S/'c.  v. 
Michel  Sfc.  13  East  249.  On  this  count,  evidence  may  be  given  in  an 
action  by  the  endorsee  against  the  acceptor  of  a  bill  of  exchange,  of  the 
acceptor's  acknowledgment  of  the  debt.  Leapcr  v.  Tatton,  16  East 
70 


554  Declarations  in  trespass. 

420.  Highmore  v.  Primrose,  5  M.  &  S.  65.  Eales  v.  Dicker,  1  Mood. 
&  Malk.  324.  22  Eng.  Com.  Law  Rep.  323.  Or  in  an  action  by  the 
endorsee  against  the  endorser  of  a  bill,  of  the  endorser's  acknowledg- 
ment. Wagstaffe  v.  Boardman,  9  Dow.  &  Ry.  248.  22  Eng.  Com.  Law 
Rep.  388. 

44.   General  conclusion. 

The  form  prescribed  by  the  judges  of  England  is  as  follows  : 

And  whereas  the  defendant,  afterwards,  on  &c.  in  considera- 
tion of  the  premises,  respectively,  then  and  there,  promised*  to 
pay  the  saidt  several  moneys,  respectively,  to  the  plaintiff',  on 
recjuest,  yet  he  hath  disregarded  his  promises,  and  hath  not  paid 
any  of  the  said  moneys,  or  any  part  thereof,  to  the  plaintiff's  da- 
mage $ ;  and  thereupon  he  brings  suit  &c. 

*  In  Jones  v.  Owen,  5  Ad.  &  E.  222.  31  Eng.  Com.  Law  Rep.  319. 
the  declaration  was  objected  to  because  it  did  not  allege  a  promise  to  the 
plaintiff.  Lord  Denman,  C.  J.  said  :  "  The  declaration  is  in  the  form 
given  by  our  own  rules.  We  cannot  call  them  in  question ;  and  inde- 
pendently of  them,  it  is  good." 

t  If  a  promise  and  breach  have  been  stated  in  the  count  or  counts 
placed  first  in  the  declaration,  insert  here  the  words  last  mentioned,  so 
that  the  promise  here  stated  may  be  "  to  pay  the  said  last  mentioned  se- 
veral moneys  respectively." 

IV.    IN    TRESPASS. 

Distinction  between  trespass  and  case. — ^The  distinction  be- 
tween trespass,  vi  et  armis,  and  trespass  on  the  case,  for  consequential 
damages,  is  this  :  where  the  act  done  is,  in  itself,  an  immediate  injury  to 
another's  person,  or  property,  there  trespass,  vi  et  armis,  will  lie,  but 
where  the  act  is  not  immediately  injurious,  but  only  by  consequence,  and 
collaterally,  there  trespass,  vi  et  armis,  will  not  lie,  but  a  special  action 
on  the  case  for  the  damages  consequent  on  such  act.  Taylor  v.  Rain- 
how,  2  H.  &  M.  423. 

Taylor  v.  Rainbow  was  an  action  of  trespass  on  the  case.  The  de- 
claration alleged  that  the  defendant  shot  the  plaintiff,  and  that,  by  reason 
thereof,  the  left  leg  of  the  plaintiff  was  obliged  to  be  taken  off,  and  that, 
in  consequence  thereof,  his  business  was  neglected,  and  he  was  obliged 
to  pay  great  sums  of  money  to  physicians  and  others.  Held  that  case 
would  not  lie.     The  action  should  have  been  trespass,  vi  et  armis. 

Where  a  writ  of  capias  ad  satisfaciendum  is  not  void,  but  the  arrest 
under  it  only  improperly  timed,  trespass  will  not  lie  against  the  plaintiff 
who  sued  out  the  writ.  Cameron  v.  Lightfoot,2  W.  Bl.  1190.  It  will 
not  lie,  for  example,  for  taking  the  defendant  into  custody,  whilst  attend- 
ing as  a  witness,  and  detaining  him  in  custody  until  he  shewed  that  he 
was  attending  under  a  subpoena.     Moore  v.  Chapman,  3  H.  &.  M.  260. 


Declarations  in  trespass. 

Even  though  it  be  shewn  that  the  debt  has  been  paid,  for  \ 
cution  issued,  still   trespass  will  not  lie.     If  the   defendant 
debt,  he  should  apply  to  the  court  in  which  the  judgment  was 
to  quash  the  execution.      Titcker,  J.  in  S.  C.  2(5o. 

1.  For  a  tresposs  to  or  tipon  the  person. 

Trespass  is  maintainable  against  husband  and  wife  jointly,  where  they 
have  been  jointly  concerned  in  committing  the  injury.  Vine  v.  Saun- 
ders, 4  Bingh.  90.  33  Eng.  Com.  Law  Rep.  290. 

Precedents  of  declarations  for  trespasses  to  persons,  are  given  by  mr. 
Chittij,  in  2  Chitty's  pleading,  850  to "858.  The  edition  referred  to  is 
5  Am.  from  4  Lond.  edi.  Phila.  1828. 

2.  For  a  trespass  upon  real  p-operty. 

By  whom  the  action  can  and  cannot  be  maintained. — Possession 
is  indispensably  necessary  to  support  an  action  of  trespass  quare  clausum 
f regit.      Truss  v.  Old,  6  Rand.  556. 

The  injury  to  the  possession,  is  the  gist  of  the  action,  and  the  action 
cannot  be  supported,  unless  at  the  time  the  injury  was  committed,  the 
plaintiff  was  in  actual  possession.  Opinions  of  the  judges  in  Cooke  v. 
Thornton,  6  Rand.  8. 

An  infant  cannot  maintain  the  action  for  a  trespass  done  to  his  lands, 
whilst  he  is  in  the  wardship  of  his  guardian,  because,  during  the  conti- 
nuance of  the  wardship,  the  possession  of  the  ward's  lands  is  in  the 
guardian,  and  not  in  the  ward.  Truss  v.  Old,  6  Rand.  556.  The  ac- 
tion for  the  trespass  belongs  to  the  guardian,  and  he  must  account  to  the 
ward  for  the  damages  recovered.  Opinion  in  >S^.  C  560.  It  follows  that 
if  a  party  enter  upon  the  ward's  lands,  with  the  license  of  the  guardian, 
and  cut  and  carry  away  the  trees  growing  thereon,  by  his  permission, 
this  will  be  no  trespass  by  the  party  so  entering,  but  the  ward  will  have 
recourse  against  his  guardian  to  the  extent  of  the  injury  done  him.  Opi- 
nion in  S.  C.  560. 

Against  whom  the  action  can  and  cannot  be  maintained. — 
If  the  commonwealth  is  in  actual  possession  of  land,  an  individual,  claim- 
ing the  same,  cannot  enter  upon  that  possession,  but  must  resort  to  his 
petition  of  right,  and  if  he  enters,  and  is  ousted  by  actual  force,  by  the 
officers  or  agents  of  the  commonwealth,  having  lawful  orders  to  do  the 
act,  he  cannot  maintain  trespass  against  them.  Young  v.  Gooch  and 
Broicn,  2  Leigh  596. 

Although  it  appear  that  the  plaintiff  was  a  tenant  at  will,  of  the  pre- 
mises in  question,  to  one  of  the  defendants,  and  consequently  that  such 
defendant  might  have  entered  upon  the  premises,  without  committing  a 
trespass,  yet  if  it  be  found  that  the  defendants,  after  such  entry,  broke 
open  the  house  and  trunks  of  the  plaintiff,  and  committed  other  enormi- 
ties, such  last  mentioned  acts  shew  quo  animo,  the  defendants  entered, 
and  make  them  trespassers  ah  initio.     Faulkner  v.  Anderson,  GWm,  221. 

To  what  extent  plaintiff  may  claim  redress. — After  a  trespass 
and  ouster  committed  upon  the  tenant  in  possession,  if  the  latter  bring 


656  Declarations  in  trespass. 

an  action  of  trespass  quare  clausum  fregit,  without  first  regaining  the 
possession,  he  can  only  recover  in  such  action,  damages  for  the  original 
trespass  and  ouster.  It  was  so  decided  in  Cooke  v.  Thornton,  6  Rand. 
8.  where  a  tenant  was  dispossessed  by  his  landlord  three  years  before 
the  expiration  of  his  term,  and  brought  his  action  of  trespass  without 
making  any  re-entry.  The  court  of  appeals  held,  that  the  jury,  in  esti- 
mating the  damages,  were  not  to  consider  the  value  of  the  term  unex- 
pired, at  the  date  of  the  ouster,  but  were  to  confine  themselves  to  the 
first  entry,  to  wit,  the  simple  trespass  and  ouster. 

The  reason  of  this  rule  is,  that  trespass  can  only  be  upon  land  in  the 
possession  of  another.  As  soon  as  a  party  is  out  of  possession,  the 
continued  possession  of  the  trespasser  is  no  trespass  upon  him.  But 
when  he  regains  the  possession,  he  is,  by  relation,  considered  as  having 
had  a  continued  possession,  and  may  then,  in  an  acti  m  of  trespass,  re- 
cover the  mesne  profits  and  damages  for  the  whole  time  he  was  dis- 
possessed.    Green,  J.  in  Cooke  v.  Thornton,  6  Rand.  13. 

The  rule  does  not  apply  where  the  estate  of  the  disseisee  is  deter- 
mined by  its  own  limitation,  or  by  the  act  of  God,  so  that  the  disseisee 
cannot  enter.  There,  the  action  will  lie  against  the  trespasser  for  the 
continued  dispossession  without  re-entry ;  and  this  from  the  necessity 
of  the  case.  Opinions  of  judges  Green  and  Cabell  in  Cooke  v.  Thorn- 
ton, 6  Rand.  13  and  18. 

How  THE  COUNT  MUST  BE  FRAMED. — The  couut  must  be  made  to  con- 
form to  the  right  of  recovery  as  here  stated,  and  where  the  plaintiff  has 
been  ousted  from  the  possession,  if  he  should  lay  the  trespass  with  a 
continuando,  without  shewing  that  he  has  re-entered,  or  that  his  estate 
has  determined,  the  count  will  be  bad.  Green,  J.  in  Cooke  v.  Thorn- 
ton, 6  Rand.  11.  If  the  plaintiff  has  never  been  deprived  of  the  pos- 
session, the  continuando  is  to  be  laid  diversis  diebus  et  vicibus.  If  he 
has  been  dispossessed,  and  has  regained  the  possession,  he  may  lay  the 
continuando,  without  describing  the  trespass  as  done  diversis  diebus  et 
vicibus.     Green,  J.  in  S.  C.  13. 

Advisable  that  the  place  be  mentioned. — It  is  advisable  that  the 
place  be  mentioned  in  the  declaration.  In  Austin  v.  Morse,  8  Wend. 
476.  the  close  was  merely  stated  to  be  situate  in  the  town  of  Easton. 
The  defendant  pleaded  liberum  tenementum,  and  the  plaintiff  replied, 
taking  issue  upon  the  plea.  The  real  question  between  the  parties  was 
the  ascertainment  of  a  boundary  line.  But  in  the  state  of  the  plead- 
ings, it  was  held,  that  according  to  the  cases,  the  defendant  verified  his 
plea  by  shewing  title  to  any  lands  in  the  town  of  Easton. 

The  doctrine  upon  this  subject  is  stated  in  Cocker  v.  Crompton  S^c. 
1  Barn.  &  Cress.  489.  8  Eng.  Com.  Law  Rep.  140.  Bayley,  J.  says, 
"  According  to  the  old  form  of  pleading  in  trespass,  the  plaintiff  did 
not  name  his  close.  Then  the  defendant  gave  some  name  to  the  close ; 
and  if  the  plaintiff  did  not  new  assign,  the  common  bar  applied." 
Holroyd,  J.  says,  "  In  the  old  common  bar,  the  defendant  alone  gave  a 
name  to  the  close,  and  then  the  issue  was,  whether  that  close  was  the 
defendant's  freehold.  In  the  rules  of  this  court  made  in  1654,  sec.  12. 
it  is  said,  '  For  the  avoiding  of  the  common  bar  and  new  assignment, 
the  declaration  upon  an  original  quare  clausum  fregit,  may  mention  the 
place  certainly,  and  so  prevent  the  use  and  necessity  of  the  common 


Declarations  in  trespass.  657 

bar  and  new  assignment,'  and  by  sec.  16.  '  The  common  bar  and  new 
assignment  is  to  be  forborne  where  certainty  is  contained  in  the  decla- 
ration, equivalent  to  a  new  assignment.'  " 

Afterwards,  says  Bayley,  J.  it  became  usual  for  the  plaintiff  to  name 
the  close  in  the  declaration.  Then  he  may  apply  his  evidence  to  any 
close  of  that  name  in  his  possession,  and  the  defendant  does  not  main- 
tain a  plea  of  liherum  tenementum  by  shewing  that  he  is  the  owner  of  a 
close  of  that  name.  In  order  to  avail  himself  of  such  a  plea,  he  must 
set  out  the  abuttals. 

Cocker  v.  Crompton  <^c.  was  trespass  for  breaking  and  entering  the 
plaintiff's  close  called  the  Fold-yard,  situate  in  the  parish  of  Prestwick 
cum  Oldham,  in  the  county  of  Lancaster.  Plea,  that  the  said  close,  in 
the  said  count  mentioned,  and  in  which  &.C.,  now  is,  and  at  the  same 
time,  when  &.c.,  was  the  close,  soil  and  freehold  of  the  said  defendant 
Crompton :  wherefore  he,  in  his  own  right,  and  the  other  defendants,  as 
his  servants,  broke  and  entered  the  same  &.c.  Replication  that  the 
said  close  was  not  the  close,  soil  and  freehold  of  the  said  defendant 
Crompton  as  alleged.  At  the  trial  it  was  proved  that  the  plaintiff  was 
in  possession  of  a  close  called  the  Fold-yard,  and  that  a  trespass  had 
been  there  committed,  but  it  appeared  that  Crompton  also  had  a  close 
called  the  Fold-yard  in  the  same  parish  :  whereupon  it  was  objected  for 
the  defendants  that  they  were  at  liberty  to  apply  all  the  evidence  to  that 
close,  and  that  the  plaintiff  must  therefore  be  nonsuited.  But  the  court 
held  otherwise.  Holroyd,  J.  said,  "  The  plaintiff  in  trespass  declares 
upon  his  possession,  and  it  appears  to  me  that  the  question  upon  the 
issue  was,  whether  the  close  described  in  the  declaration,  as  the  plain- 
tiff's was  the  defendant's  freehold  or  not.  Now,  there  was  evidence 
that  a  close  of  that  name,  in  the  plaintiff's  possession,  was  not  the  free- 
hold of  the  defendant,  and  he  had  no  right  to  substitute  another  close 
as  the  subject  matter  of  the  issue." 

Use  of  clacse  of  alia  enormia. — While  every  act  of  trespass, 
which  will  bear  an  action,  must  be  stated  in  the  declaration,  in  order  to 
be  relied  upon  at  the  trial,  such  facts  as  are  of  an  opposite  character 
may  be  given  in  evidence  under  the  clause  of  alia  enormia,  contained 
in  the  declaration.  If  the  defendants  went  to  the  house  of  the  plaintiff 
to  search  for  stolen  goods,  and  broke  and  searched  her  trunks  for  this 
purpose,  the  plaintiff  under  the  clause  of  alia  enormia  may  recover  da- 
mages for  the  injury  to  her  reputation,  arising  from  these  facts.  Faulk- 
ner v.  Anderson,  Gilm.  221. 

Forms  of  declarations. — Precedents  of  declarations  for  trespasses 
to  real  property  are  given  in  2  Chitty's  pleading,  863  to  875.  The 
edition  referred  to,  is  the  5  Am.  from  the  4  Lond.  edi.  printed  at  Phi- 
ladelphia in  1828. 

The  report  of  the  case  of  Hefeman's  ex' or  v.  Vidal,  6  Munf.  27.  con- 
tains the  declaration  in  that  case,  wliich  is  of  a  peculiar  character. 
The  action  is  against  a  justice  of  the  peace  for  maliciously  issuing  a 
warrant  to  a  constable,  requiring  him  to  enter  the  house  of  the  plaintiff 
and  search  for  slaves,  by  virtue  of  which  the  constable  did  forcibly  en- 
ter the  close  of  the  plaintiff,  and  did  take  and  carry  away  out  of  the 
possession  of  the  plaintiff  certain  slaves,  claimed  by  the  plaintiff  as  his 
own.     After  verdict  for  the  plaintiff,  it  was  objected  that  the  declaration 


558  Declarations  in  trespass. 

ought  to  have  been  trespass,  and  not  case.  The  court  of  appeals  said, 
that  it  considered  the  action  as  an  action  of  trespass,  vi  et  armis,  and, 
thus  considering  it,  affirmed  the  judgment. 

3.  For  a  trespass  upon  personal  property. 

It  lies  for  destroying  or  injuring  slaves. — An  action  of  tres- 
pass lies  for  destroying  or  injuring  slaves  as  well  as  other  personal  pro- 
perty. 

Harris  v.  Nicholas,  5  Munf  483.  was  an  action  of  covenant,  brought 
on  an  obligation  given  by  the  hirer  of  a  slave,  which  stated  that  the 
slave  was  "  to  he  returned  locll  cloathed  on  or  before  the  25th  of  De- 
cember." The  allegation  was,  that  the  hirer  did  not  return  the  slave. 
By  the  pleadings,  it  appeared  that  the  hirer,  with  the  knowledge  and  as- 
sent of  the  owner,  delivered  him  to  another  person,  to  be  employed  up- 
on the  plantation  of  such  person,  and  the  overseer  of  that  person,  ?/n- 
lawfully,  cruelly  and  excessively  heat  and  whipped  the  slave,  in  conse- 
quence whereof,  the  slave  died,  and  the  death  happened  before  the  time 
mentioned  in  the  obligation  for  the  return  of  the  slave.  The  court  of 
appeals  was  of  opinion,  that  if  the  covenant  could  be  considered  as  a 
covenant  to  return  the  slave,  as  well  as  to  secure  the  payment  of  the 
money  due  for  the  hire,  it  ought  not  to  be  considered  as  a  covenant  to 
insure  such  return  in  the  event  which  happened,  especially  under  the 
usage  and  understanding  of  this  country  in  relation  to  the  subject.  And 
the  court  was  further  of  opinion,  that  the  hirer  would  not  be  held  lia- 
ble under  the  facts  disclosed  in  the  pleadings,  (admitting  that  the  over- 
seer was  his  servant  or  agent,)  as  the  act  of  the  overseer  which  caused 
the  death  of  the  slave  was  neither  authorized  by  the  hirer  nor  commit- 
ted by  the  overseer  in  the  usual  and  proper  course  of  his  duty  as  such, 
but  was  a  wilful  and  unauthorized  trespass. 

It  lies  against  an  officer  for  his  tortious  act. — A  justice  of 
the  peace,  within  the  district  of  Columhia,  being  exempt  from  the  per- 
formance of  militia  duty,  it  has  been  decided  that  an  action  of  trespass 
lies  against  the  officer  who  makes  distress,  in  order  to  satisfy  a  fine  as- 
sessed upon  such  justice  by  a  court  martial.  Wise  v.  Withers,  3 
Cranch33J. 

Or  for  the  tortious  act  of  ins  deputy. — It  has  also  been  deci- 
ded that  trespass  lies  against  a  high  sheriff  for  the  tortious  act  of  his  de- 
puty, as  such.  Tucker,  J.  in  Moore's  adm'r  v.  Dawney  S^c.  3  H.  &,  M. 
127.  James  v.  M'Cuhbin,  2  Call  273. 

In  James  v.  M'Cubbin,  the  declaration  alleged  that  the  deputy,  in  or- 
der to  injure  the  plaintiff,  sundry  horses,  the  property  of  the  plaintiff, 
drove,  or  procured  to  be  driven,  upon  the  land  of  J.  M.,  where  *S^.  B. 
then  lived  as  tenant,  in  order  that  he,  the  deputy,  might  levy  a  distress 
warrant  upon  the  said  properly,  as  deputy  sheriff,  which  he  did,  and  af- 
terwards sold  the  said  horses,  to  the  plaintiff's  damage.  Verdict  was 
found  for  the  plaintiff,  upon  which  the  county  court  gave  judgment. 
The  district  court  reversed  the  judgment.  But  in  the  court  of  appeals 
the  judgment  of  the  district  court  was  reversed,  and  that  of  the  county 
court  affirmed. 


Declarations  in  trespass.  559 

When  it  lies  for  or  against  a  personal  representative. — The 
statute  allowing  trespass  by  or  against  executors  or  administrators,  for 
goods  taken  or  carried  away,  in  the  lifetime  of  the  testator  or  intestate, 
with  the  decisions  thereupon,  and  the  statute  allowing  a  suit  for  a  tres- 
pass, in  injuring  or  destroying  the  slaves  or  other  personal  property  of 
another,  to  be  brought  or  revived  by  the  representative  of  the  injured 
party,  or  against  the  representative  of  the  wrong-doer,  are  cited  in  1  Rob. 
Prac.  52,  3. 

What  amounts  to  a  waiver  of  the  trespass. — In  Hite  v.  Long,  6 
Rand.  457.  the  plaintiff  brought  his  action  of  trover  to  recover  the  value 
of  a  horse,  taken  by  the  defendant  out  of  his  waggon,  and  he  also  brought 
trespass  to  recover  damages  as  well  for  the  defendant's  violence,  in  ta- 
king that  horse,  as  for  trespass  in  stopping  the  plaintiff's  team,  in  order 
to  take  him.  In  the  action  of  trover,  there  was  a  judgment  for  the  de- 
fendant, and  this  judgment  was  held  to  be  a  bar  to  the  action  of  tres- 
pass. It  was  not  competent  to  the  plaintiff  to  split  one  cause  of  action 
into  two.  The  action  of  trespass  furnished  a  complete  remedy,  as  well 
for  the  value  of  the  horse,  as  for  the  defendant's  violence  in  taking  him, 
and  his  conduct  in  stopping  the  team ;  but  when  the  plaintiff  elected 
also  to  bring  trover,  that  was,  in  law,  a  waiver  of  the  whole  trespass,  as 
well  that  committed  in  taking  the  horse,  as  in  stopping  the  team ;  and 
afterwards  no  action  could  be  maintained  for  the  trespass  so  waived. 

Whether  the  declaration  must  specify  the  property. — Where 
the  declaration  charges  the  taking  away  of  "  a  quantity  of  poultry,  to 
wit,  turkeys,  geese,  ducks  and  hens  of  the  value  of  $  30,"  judgment 
will  not  be  arrested  because  it  does  not  state  how  many  there  were  of 
each  description.  Donaghe  v.  Roudehoush,  A  Munf.  251.  But  if  the 
action  be  under  the  statute  for  distraining  the  goods  of  the  plaintiff  for 
rent  when  no  rent  was  in  arrear,  and  the  declaration  is,  in  general  terms, 
for  causing  a  distress  to  be  made  and  levied  on  the  personal  property  of 
the  plaintiff,  the  want  of  specification  of  the  goods  may  perhaps  be  fatal 
on  demurrer.     Coalter,  J.  in  Jones  v.  Murdaugh,  2  Leigh  449. 

Whether  declaration  must  state  possession  of  plaintiff. — 
Judgment  will  not  be  arrested  because  the  declaration  does  not  charge 
that  the  goods  taken  by  the  defendant  were  in  the  possession  of  the  plain- 
tiff at  the  time  of  the  taking,  if  they  are  charged  to  be  the  property  of 
the  plaintiff.     Donaghe  v.  Roudehoush,  4  Munf.  251. 

Averment  of  property  indispensable. — The  averment  oi  property 
in  the  plaintiff  is  indispensable.  If,  for  example,  the  declaration  should 
merely  charge  that  the  defendant  forcibly  took  a  horse,  in  the  possession 
of  the  plaintiff,  without  claiming  such  horse  to  be  the  property  of  the 
plaintiff,  the  declaration  will  be  bad  on  demurrer.  Hite  v.  Long,  6 
Rand.  457.  And  where  a  declaration  averred  that  whilst  the  plaintiff's 
waggon  and  team  were  travelling  on  the  highway,  the  defendant  forcibly 
took  from  the  team  a  horse  in  the  use  and  possession  of  the  plaintiff,  em- 
ployed in  drawing  his  waggon,  whereby  the  waggon  and  team  of  the 
plaintiff  were  detained  in  the  public  highway,  and  interrupted  in  the 
prosecution  of  their  trip,  it  was  held  that  the  defendant  might  justify,  by 
a  plea  averring  that  the  horse  was  his  property ;  that  the  waggoner,  (the 
plaintiff  not  being  present,)  endeavoured  to  carry  him  off  by  violently 
driving  the  team ;  and  that  he  stopped  the  team  in  order  to  retake  his 
horse,  using  no  more  force  than  was  necessary  for  this  purpose.     Ibid. 


560  Declarations  in  detinue. 

Forms  of  declarations. — Precedents  of  declarations  for  trespasses 
to  personal  property  are  given  in  Chitty's  pleading,  vol.  2.  p.  858  to  863. 
The  edition  referred  to  is  the  5  Am.  from  the  4  Lond.  edi.  printed  at 
Philadelphia  in  1828. 

A  declaration  for  destroying  or  injuring  a  slave  may  be  as  follows : 

A.  B.  complains  of  C.  D.  in  custody  &c.  of  a  plea  of  tres- 
pass for  this,  to  wit,  that  the  said  C.  D.  on  &c.  with  force  and 
arms  &c.  to  wit,  at  &c.  beat,  hurl,  wounded  and  injured  a  cer- 
tain slave  named  John,  the  properly  of  him  the  said  plaintiff",  of 

great  value,  to  wit,  of  the  value  of  $ ,  so  greatly  that,  by 

reason  thereof,  the  said  slave,  (afterwards,  to  wit,  on  the  day 
and  year  aforesaid,  died,  and  the  plaintiff''s  property  in  the  said 
slave  was  thereby  entirely  destroyed,)  to  wit,  at  &c.  aforesaid, 
and  other  wrongs  to  the  said  plaintiff",  then  and  there,  did,  to  the 
great  damage  of  the  said  plaintiff",  and  against  the  peace  of  the 
commonwealth.     Wherefore  the  said  plaintiff"  saith,  that  he  is 

injured,  and  hath  sustained  damage  to  the  amount  of  $ ; 

and  therefore  he  brings  suit  &c. 

{In  lieu  of  the  words  in  parenthesis,  such  icords  as  the  following  can 
be  inserted,  where  the  case  makes  it  proper  to  do  so — was  unable  to  work 

for  a  long  time,  to  wit,  for months,  and  during  all  that  time  the 

said  plaintiff  entirely  lost,  and  was  deprived  of,  all  benefit  of  the  said 
slave). 

In  Vaughan^s  adm'r  v.  Winckler's  ex'or,  4  Munf.  136.  the  action  was 
by  an  executor  against  an  administrator,  for  a  quantity  of  corn  belong- 
ing to  the  plaintiff's  testator,  which  was  taken  by  the  defendant's  intes- 
tate. The  reporter  having  given  the  declaration  verbatim,  it  is  sufficient 
here  to  refer  to  it. 

V.    IN   DETINUE. 

Object  of  the  action. — The  object  of  the  action  of  detinue  is  to 
recover  the  specific  property  detained,  or  its  value,  and  damages  for  de- 
tention.    Brooke,  J.  in  Austin's  ex'or  v.  Jones,  Gilm.  350. 

For  what  it  may  be  maintained. — In  Virginia,  detinue  is  the  com- 
mon action  for  the  recovery  of  slaves.  Sometimes  it  is  brought  for  other 
things.  In  Myers  Sf  Son  v.  Friend  Sf  Scott,  1  Rand.  12.  it  was  main- 
tained for  a  treasury  note. 

Plaintiff  must  have  title  and  defendant  possession. — The 
plaintiff  must  prove  title  in  himself  and  possession  in  the  defendant. 

What  title  is  sufficient. — The  mortgagee  of  a  slave  may  maintain 
detinue  against  the  mortgagor,  after  a  forfeiture  is  incurred  by  a  failure 
to  perform  the  condition,  and  the  defendant  cannot  avoid  a  recovery  by 
shewing  a  mere  acceptance  of  payment  after  the  forfeiture,  without  any 
release  of  the  title.  Faulkner's  adm'x  v.  Harwood,  4  Rand.  245.  It  fol- 
lows that  a  surety  in  the  bond  secured  by  the  mortgage,  who  pays  it  off 


Declarations  in  detinue.  661 

subsequent  to  the  forfeiture,  may  obtain  at  law  the  same  benefit  from  the 
deed  that  he  would  be  entitled  to  in  equity  upon  the  principle  of  substi- 
tution. For,  with  the  consent  of  the  mortgagee,  an  action  may  be 
maintained  in  his  name  against  the  mortgagor,  to  recover  the  slave  for 
the  benefit  of  the  surety.     Ibid. 

In  Hunter  v.  Jones,  6  Rand.  541.  the  facts  were  these  :  The  widow  of 
an  intestate  administered  on  his  estate,  and,  by  consent  of  the  guardian 
of  his  only  child,  made  a  purchase  of  several  slaves  with  the  moneys 
of  the  estate.  The  widow  afterwards  married,  and  then  an  order  was 
made  appointing  commissioners  to  allot  to  her,  for  life,  her  share  of  the 
slaves.  The  husband  and  wife,  and  the  guardian  of  the  infant,  attend- 
ed at  the  division,  when  the  slaves  so  purchased  were  brought  forward 
by  the  husband  and  wife,  as  part  of  the  estate.  No  other  account  was 
given  of  the  profits  of  the  estate,  and  the  guardian  agreed  to  accept  the 
slaves  so  purchased,  as  part  of  the  estate,  in  lieu  of  such  account. 
They  were  accordingly  treated  as  such  by  the  assent  of  all  parties ;  were 
divided  by  the  commissioners  as  of  the  estate  of  the  intestate,  and  this 
division  was  returned  and  recorded.  In  this  division  there  was  an  allot- 
ment to  the  widow,  for  life,  of  one  of  the  slaves  so  purchased,  but  the 
husband,  notwithstanding,  afterwards  sold  this  slave  as  the  absolute  pro- 
perty of  the  wife.  Upon  the  death  of  the  wife,  an  action  was  brought 
by  the  child,  as  distributee  of  the  intestate,  to  recover  this  slave  from 
the  second  husband's  vendee.  The  court  of  appeals  held,  that  as  the 
parties  had  agreed  to  consider  the  slaves  purchased  with  the  means  of 
the  estate,  as  though  they  originally  belonged  to  it,  and  had  treated  them 
as  such,  instead  of  calling  the  administratri.v  to  account  for  the  estate, 
it  was  an  arrangement  that  bound  her  and  her  husband,  and  was  equally 
binding  on  those  claiming  under  him,  so  as  to  vest  the  title  in  the  plain- 
tiff, in  like  manner  as  if  they  had  belonged  to  the  intestate. 

A  legatee  cannot  recover  a  slave  bequeathed  to  him  without  proving 
the  assent  of  the  e.xecutor  to  the  legacy.  Hairston  v.  Hall,  3  Call  218. 
And  see  Roijall  v.  Eppcs,  2  Munf.  478. 

After  the  assent  of  the  executor,  the  property  in  the  specific  thing  be- 
queathed, vests  in  the  legatee,  and  he  may  have  an  action,  at  common 
law,  for  the  recovery  of  the  legacy,  against  a  stranger,  or  the  executor, 
as  the  case  may  be.  Opinion  of  court  in  Smith  and  wife  v.  Townes's 
admW,  4  Munf  193. 

The  assent  of  the  e.xecutor  is  not  unavailing  where  the  specific  thing 
was  out  of  the  possession  of  the  testator,  at  the  time  of  his  death.  He 
has  the  power  of  bequeathing  any  specific  article  of  personal  property 
owned  by  him,  although  he  may  be  out  of  possession.  The  property 
will  pass  by  the  will  in  this  as  in  other  cases,  on  the  executor's  giving  his 
assent.  And  the  assent  being  once  given,  the  legatee  is  complete  own- 
er, and  may  sue  in  his  own  name.  Smith  and  wife  v.  Totones's  adm'r, 
4  Munf  193. 

It  is  well  established,  that  an  assent  of  the  executor  to  the  first  taker's 
possession  and  enjoyment  of  the  legacy,  is  an  assent  to  the  remainder- 
man. 

In  Lynch  v.  Thomas,  3  Leigh,  682.  a  testator  bequeathed  a  slave  to 
an  infant  son,  and  directed  that  the  wife  should  hold  the  slave  till  his 
son  attained  to  full  age.  The  testator  died  in  1796,  and  soon  afterwards 
71 


D 


562  Declarations  in  detinue. 


the  executor  delivered  the  slave  to  the  wife.  The  wife  died  in  1815, 
and  then  the  son  brought  detinue  for  the  slave  and  her  increase,  against 
a  person  who  had  acquired  possession  thereof  It  was  held,  that  the 
assent  of  the  executor  to  the  wife's  taking  possession  under  the  will, 
was  an  assent  to  the  son's  legacy,  and  vested  him  with  the  legal  title  to 
maintain  detinue. 

If  a  plaintiff  in  detinue  shew  that  he  had  five  years  peaceable  posses- 
sion, acquired  without  force  or  fraud,  and  that  the  defendant  obtained 
possession  after  the  plaintiff  had  been  so  possessed,  the  plaintiff  shews 
such  a  title  as  will  enable  him  to  recover.  Newbi/'s  adm'r  v.  Blalcey, 
3  H.-  &i.  M.  57.  And  see  Mortimer  v.  Bramjield,  3  Munf  122.  But 
the  title  thus  shewn  does  not  affect  the  rights  of  persons  coming  within 
the  exceptions  to  the  act  of  limitations.  Blakey  v.  Newbi/'s  adm'r,  6 
Munf  64. 

After  a  judgment  in  detinue  for  a  slave,  the  plaintiff  cannot  bring  a 
subsequent  action  of  detinue  for  the  same  slave,  in  the  common  form, 
and  rely  upon  the  judgment  as  evidence  of  title.  If  any  action,  other 
than  a  scire  facias,  can  be  maintained  on  a  judgment  in  detinue, 
such  action  must  be  brought  upon  the  judgment  itself  In  such  case, 
the  judgment  must,  at  all  events,  he  declared  upon,  and  not  merely  re- 
lied on  as  evidence  of  title.  Wither' s  ex'x  v.  Wither's  ex'or,  6  Munf. 
10. 

What  possession  in  defendant  will  support  the  action 
AGAINST  HIM. — Proof  of  possessiou  at  a  day  anterior  to  the  bringing  of 
the  suit,  is  sufficient  to  charge  the  defendant,  unless  he  can  shew  that  he 
was  lawfully  evicted.  Burnley  v.  Lambert,  1  Wash.  308.  Lynch  v. 
Thomas,  3  Leigh  682. 

Defendant's  possession  charges  him  in  his  individual  cha- 
racter.— An  administrator,  who  has  been  holding  slaves,  in  which  his 
intestate  had  only  an  estate  for  life,  and  is  sued  for  those  slaves  by  the 
person  entitled  after  the  death  of  tenant  for  life,  will  be  held  liable  per- 
sonally. The  action  of  detinue  lies,  in  such  a  case,  against  him  in  his 
individual  character.  Roy  all  v.  Eppes,  2  Munf  479.  See  also  New- 
sum  V.  Neicsum,  1  Leigh  86. 

How   THE   declaration   MAY  DESCRIBE  THE  SLAVE  OR  OTHER 

thing  sued  FOR. — Dctinuc  may  be  maintained  for  an  infant  negro, 
child  of  such  a  mother,  without  any  other  description.  By  chancellor 
Taylor,  in  Bass  v.  Bass,  4  H.  &  M.  478.  See  also  Royall  v.  Eppes, 
2  Munf  489. 

AvERMKNT  OF  PROPERTY  NECESSARY. — In  detiuuc  for  a  slave,  the 
declaration  will  be  insufficient  to  support  the  action,  unless  it  state  that 
the  slave  belonged  to,  or  was  the  property  of  the  plaintiff.  Kent  v.  Ar- 
mi stead,  4  Munf  72. 

Value  must  be  laid  separately  for  each  slave. — The  decla- 
ration should  lay  a  separate  value  as  to  each  slave  demanded  thereby  : 
otherwise,  it  will  be  held  bad  on  general  demurrer.  Opinion  of  court, 
in  Holladay  S^  wife  v.  Littlepage,  2  Munf  539.  But  if  there  be  no 
demurrer,  and  there  is  a  verdict  for  the  plaintiff,  in  which  the  values  are 
severed,  the  defect  will  be  thereby  cured.     S.  C 

Not  necessary  to  allege  a  special  demand. — The  general  alle- 
gation of  licet  smpius  requisitus  is  sufficient  without  stating  a  special 
demand.     Mortimer  v.  Bramfeld,  3  Munf  122. 


Declaratimu  in  detinue.  663 

Forms  of  the  counts. — Forms  of  counts  in  detinue  are  given  in 
Chitty's  pleading,  vol.  2,  of  5  Am.  from  4  Lond.  edi.  p.  592,  3,  4. 
Those  forms  are  followed,  with  very  little  variation,  in  the  following  de- 
claration for  a  slave. 

C  L.  complains  of  L.  J.  in  custody  &c.  of  a  plea,  that  he 
render  to  the  said  plaintiff  a  negro  woman  slave,  named  Alice,  the 
properly  of  him  the  said  plaintiff,  of  great  value,  to  wit,  of  the 
value  of  $  600,  which  from  the  said  plaintiff  he  unjustly  detains. 
And  thereupon  the  said  plaintiff  saith,  thai  heretofore,  to  wit, 
on  &c.  at  &c.  he,  the  said  plaintiff,  delivered  to  the  said  L.  J. 
the  said  negro  woman  slave  named  Alice,  the  property  of  the 
said  plaintiff,  of  great  value,  to  wit,  of  the  value  of  $  600,  to  be 
redelivered  by  the  said  L.  J.  to  the  said  plaintiff,  when  he  the 
said  L.  J.  should  be  thereunto  afterwards  requested.  Never- 
theless, the  said  L.  J.  although  he  was  afterwards,  to  wit,  on 
&c.  at  &c.  aforesaid,  requested  by  the  said  plaintiff  so  to  do, 
hath  not  as  yet  delivered  the  said  slave  to  the  said  plaintiff,  but 
hath  hitherto  wholly  neglected  and  refused,  and  still  doth  neglect 
and  refuse  so  to  do,  and  still  unjustly  detains  the  same  from  the 
said  plaintif!',  to  wit,  at  &c.  aforesaid. 

And  whereas,  also,  heretofore,  to  wit,  on  &c.  aforesaid,  at 
&c.  aforesaid,  the  said  plaintiff  was  lawfully  possessed  of  a  cer- 
tain other  slave,  to  wit,  a  negro  woman  named  Alice,  of  great 
value,  to  wit,  of  the  value  of  S  600,  as  of  his  own  property,  and 
being  so  possessed  thereof,  he  the  said  plaintiff  afterwards,  to 
wit,  on  &c.  aforesaid,  at  &c.  aforesaid,  casually  lost  the  said 
slave  out  of  his  possession,  and  the  same,  afterwards,  to  wit,  on 
&c.  aforesaid,  at  Sec.  aforesaid,  came  to  the  possession  of  the 
said  L.  J.  by  finding.  Nevertheless,  the  said  L.  J.  well  know- 
ing the  said  slave  to  be  the  property  of  him  the  said  plaintiff, 
and  of  right  to  belong  and  appertain  to  him,  hath  not,  as  yet, 
delivered  the  said  last  mentioned  slave  to  the  said  plaintiff,  al- 
though he  was  afterwards,  to  wit,  on  &c.  at  &c.  aforesaid,  re- 
quested by  the  said  plaintiff  so  to  do,  but  hath  hitherto  wholly 
refused  so  to  do,  and  hath  detained,  and  still  doth  detain,  the 
same  from  the  said  plaintiff,  to  wit,  at  &c.  aforesaid,  to  the  da- 
mage of  the  said  plaintiff  of  $  600 ;  and  therefore  be  brings  his 
suit  &c. 


564  Declarations  in  case, 

VI.    IN    CASE. 

1.  For  a  slave  or  other  chattel  converted  by  defendant  to  fits  use. 

Action  may  be  maintained  by  a  trustee. — A  trustee  having  the 
legal  title  to  a  slave  or  other  chattel,  may  assert  that  title  by  any  action 
which  is  given  to  the  legal  owner  of  property.  Where  trover  is  the  pro- 
per action  to  be  brought  by  any  other  legal  owner,  the  trustee  may  bring 
it  also,  and  a  court  of  law  will  not  limit  his  recovery  to  nominal  da- 
mages. He  will  recover  the  full  value  of  the  property,  notwithstanding 
the  recovery,  by  vesting  the  title  of  the  trust  subject  in  the  defendant, 
will  have  the  effect  of  aliening  that  subject  against  the  purpose  of  the 
trust.     Opinion  of  Carr,  J.  in  Newsum  v.  Netcsum,  1  Leigh  92. 

It  will  not  lie  against  an  agent  who  has  made  payment  to  his 
PRINCIPAL  WITHOUT  NOTICE. — In  Travis  V.  Claiborne,  5  Munf  435.  a 
slave  had  been  conveyed  by  deed  of  trust  to  secure  a  debt.  The  maker 
of  the  deed  afterwards  delivered  the  slave  to  the  defendant,  as  his  agent, 
and,  in  that  character,  the  defendant  carried  the  slave  to  the  western 
country,  sold  him,  and,  after  deducting  his  commission,  paid  over  the 
proceeds  to  his  principal.  The  defendant  had  no  notice  of  the  lien  upon 
the  slave,  until  after  he  had  paid  his  money  to  his  principal,  except  such 
notice  as  might  be  implied  from  the  recording  of  the  deed.  Trover  was 
brought  against  the  defendant  by  the  trustee.  And  it  was  held  that,  as 
he  had  acted  merely  as  agent,  and  had  paid  over  the  money  to  his  princi- 
pal, without  notice,  the  action  would  not  lie  against  him,  though  it  would 
against  the  principal. 

But  a  payment  over  by  an  executor  or  administrator  will  not 
EXONERATE  HIM. — An  attempt  was  made  to  apply  the  principle  of  this 
decision  to  the  case  of  Netcsum  v.  Newsum,  1  Leigh  86.  That  was  an 
action  of  trover  brought  by  the  owner  of  a  slave  against  a  person  who 
had  received  the  slave  as  administrator  of  an  intestate's  estate,  sold  him 
in  the  same  character,  and  paid  over  the  proceeds  of  sale,  as  well  as  the 
other  assets  of  the  estate,  to  the  creditors  of  the  intestate.  All  this  was 
done  before  the  institution  of  the  suit,  and  before  notice  of  any  defect  in 
the  intestate's  title.  But  the  court  of  appeals  did  not  regard  this  case  as 
analogous  to  that  of  principal  and  agent.  The  court  was  of  opinion  that 
an  administrator  selling  property  as  belonging  to  his  intestate,  acted  at 
his  peril,  and  if  he  sold  the  property  of  another,  he  would  have  to  answer 
for  it  to  that  other,  however  he  might  have  thought  himself  bound  by 
law  to  sell,  and  however  fairly  he  might  have  applied  the  proceeds  to  the 
debts  of  his  intestate. 

When  demand  and  refusal  are  not  necessary  to  be  shewn. — 
Demand  and  refusal,  being  only  evidence  of  conversion,  need  not  be 
shewn  when  there  is  sufficient  proof  of  actual  conversion.  Newsum  v. 
Newsum,  1  Leigh  86. 

Form  of  declaration. — Forms  of  declarations  in  trover  are  given 
in  Chitty's  pleading,  vol.  2  of  5  Am.  from  4  Lond.  edi,  p.  835  to  842. 
The  form  in  most  cases  is  as  follows,  (the  property  being  of  course  de- 
scribed according  to  the  nature  of  the  case)  :  "^ 


Declarations  in  case.  666 

A.  B.  complains  of  C.  D.  in  custody  &c.  of  a  plea  of  trespass 
on  the  case.  For  that  whereas,  the  said  plaintiff,  heretofore,  to  wit, 
on  &c.  at  &c.  was  lawfully  possessed,  as  of  his  own  property,  of 
certain  goods  and  chattels,  to  wit,  200  bushels  of  hidian  corn^  of 
great  value,  to  wit,  of  the  value  of  $ ,*  and  being  so  pos- 
sessed thereof,  he  the  said  plaintiff  afterwards,  to  wit,  on  the 
day  and  year  first  above  mentioned,  at  &c.  aforesaid,  casually 
lost  the  said  goods  and  chattels  out  of  his  possession ;  and  the 
same  afterwards,  to  wit,  on  &c.  last  aforesaid,  at  &c.  aforesaid, 
came  to  the  possession  of  the  said  C.  D.  by  finding.  Vet  the 
said  C.  D.  well  knowing  the  said  goods  and  chattels  to  be  the 
property  of  the  said  plaintiff,  and  of  right  to  belong  and  apper- 
tain to  him,  but  contriving  and  fraudulently  intending,  craltily 
and  subtly,  to  deceive  and  defraud  the  said  plaintiff,  in  this  be- 
half, hath  not,  as  yet,  delivered  the  said  goods  and  chattels,  or 
any  part  thereof,  to  the  said  plaintiff,  although  often  requested 
so  to  do,  and  hath,  hitherto,  wholly  refused  so  to  do,  and  after- 
wards, to  wit,  on  &c.  aforesaid,  at  &c.  aforesaid,  converted  and 
disposed  of  the  said  goods  and  chattels,  to  his  own   use,  to  the 

damage  of  the  said  plaintiff  $ ;  and  therefore  he  brings 

suit  &c. 

*  In  The  mayor  S^^c.  of  Reading  v.  Clarke,  4  Barn.  &  Aid.  268.  6  Eng. 
Com.  Law  Rep.  421.  the  court,  in  its  opinion,  remark,  that  "even  in 
trover  and  trespass  for  taking  goods,  the  value  is  always  stated."  Whe- 
ther the  value  need  be  stated,  was  before  the  court  of  appeals  in  Pear- 
point  V.  Henry,  2  Wash.  192.  The  failure  to  state  the  price  or  value 
was  there  made  the  ground  of  a  motion  in  arrest  of  judgment,  but.  the 
court  overruled  the  motion.  i2oowe,  J.  said,  "  It  seems  to  be  the  better 
opinion  that  a  declaration  in  this  action  need  not  state  the  price  of  the 
thing  converted,  though  this  is  necessary  in  the  action  of  detinue,  where 
the  thing  itself,  or  the  value,  is  to  be  recovered." 

2.  For  lank  notes  or  hills  of  exchange  lost  hy  or  stolen  from  'plaintiff ^ 
and,  converted  hy  defendant  to  his  use. 

Decisions  on  this  subject. — One  who  has  lost  a  note  payable  to  the 
bearer  of  it,  or  a  bill  of  exchange  endorsed  in  blank,  ought  immediately 
to  give  notice  of  his  loss  to  the  public,  in  such  a  manner  as  is  most  likely 
to  prevent  innocent  persons  from  taking  it.  Beckwith  v.  Conal  S^c.  3 
Bingh.  444.  13  Eng.  Com.  Law  Rep.  44.  If,  after  such  notice  be  given,  a 
person  takes  that  note  from  a  stranger  without  making  such  inquiries  as 
prudence  would  suggest  to  any  one  acquainted  with  the  business  of  the 
world,  should  be  made,  the  owner  of  the  note  may  recover  the  value  of 
it  from  him.  Although  the  loss  of  the  note  has  not  been  duly  advertised, 
yet  if  it  has  been  received  under  circumstances  which  induce  a  belief 
that  the  receiver  knew  that  the  holder  had  become  possessed  of  it  dis- 
honestly, the  true  owner  is  entitled  to  recover  its  value  from  the  receiver. 


666  Declarations  in  case. 

The  negligence  of  the  owner  is  no  excuse  for  the  dishonesty  of  the  re- 
ceiver. But  the  negligence  of  the  one  may  be  an  excuse  for  the  negli- 
gence of  the  other,  and  might  authorize  him  to  defend  himself  on  the 
Ts\?i\iTa,  potior  est  conditio  possidentis.  Best,  C.  J.  in  Snow  v.  Peacock, 
3  Bingh.  406.   13  Eng.  Com.  Law  Rep.  25. 

In  SnoiD  V.  Peacock,  it  was  left  to  the  jury  to  say,  whether  they  thought 
the  plaintiffs  had  done  all  that  it  was  proper  for  them  to  do,  to  make  the 
loss  of  the  bill  known  to  the  world  ;  and  if  they  had,  whether  the  de- 
fendant's clerk  had  used  due  caution  at  the  time  he  took  the  bill.  A 
verdict  being  found  for  the  plaintiff,  a  new  trial  was  moved  for  on  the 
ground  that  the  only  question  that  should  have  been  left  to  the  jury  was, 
whether  the  defendants  took  the  bill  bona  fide,  and  it  was  insisted  that 
want  of  caution  on  their  part  was  only  to  be  received  as  evidence  of 
mala  fides.  But  the  court  of  common  pleas  heldihe  direction  to  the  jury 
was  right,  and  overruled  the  motion  for  a  new  trial. 

The  principle  is  equally  well  settled,  that  no  person  should  take  a  bill 
of  exchange  from  another  without  using  reasonable  caution.  Gill  v.  Cor- 
bett  Sfc.S  Barn.  &  Cress.  466.  10  Eng.  Com.  Law  Rep.  154.  As  far  as 
respects  this  matter,  there  is  no  difference  between  a  bank  bill  and  a  bill 
of  exchange  payable  to  a  particular  person,  and  by  him  endorsed  in 
blank.  Both  are  payable  to  bearer.  Best,  C.  J.  in  Snow  v.  Peacock,  3 
Bingh.  406.  13  Eng.  Com.  Law  Rep.  25. 

In  the  following  cases,  the  owners  of  notes  and  bills  recovered  against 
the  receivers  or  holders.  Strange  v.  Wignei/,  6  Bingh.  677.  19  Eng. 
Com.  Law  Rep.  201.  Easley  v.  Crockford,  10  Bingh.  243.  25  Eng. 
Com.  Law  Rep.  116.  See  also  Backhouse  v.  Harrison,  5  Barn.  &  Ad. 
1098.  27  Eng.  Com.  Law  Rep.  276. 

In  the  following  cases,  the  receiver  was  protected.  Snotc  Sfc.  v.  Sad- 
dler, 3  Bingh.  610.  13  Eng.  Com.  Law  Rep.  69.  De  La  Cliaumette  v. 
The  Bank  of  England,  2  Barn.  &  Adol.  385.  22  Eng.  Com.  Law  Rep. 
106. 

The  case  of  Johnson  S^c.  v.  Wendle  Sfc.  3  Bing.  N.  C.  225.  does  not 
come  within  either  class  of  cases.  The  action  was  trover  against  the 
makers  of  a  promissory  note  by  the  payees  to  whom,  or  to  whose  order, 
the  note  was  payable.  It  had  never  been  endorsed  by  them,  or  by  their 
authority,  nor  was  any  person  ever  authorized  by  them  to  receive  the 
amount.  The  note  was  stolen  from  them  by  a  clerk  in  their  service, 
who  forged  the  endorsements  upon  it.  Being  presented  with  these  en- 
dorsements to  the  bankers  of  the  defendants,  it  was  paid  by  them.  Af- 
ter demand  and  refusal,  the  action  of  trover  was  brought,  and  judgment 
was  given  for  the  plaintiffs.  Tindal,  C.  J.  said,  "it  would  be  of  most 
dangerous  consequence  if  we  were  to  give  legality  to  a  forged  endorse- 
ment of  a  bill  of  exchange.  The  general  rule  is,  that  no  title  can  be 
obtained  through  a  forgery." 

3.  For  loss  of,  or  injury  to  a  slave,  occasioned  by  defendant's 

neglect. 

Decisions  upon  the  subject. —  Williams  v.  Moore,  3  Munf  310. 
was  an  action  on  the  case  to  recover  damages  for  an  injury  to  the  slave 


Declarations  in  ca^e.  667 

of  the  plaintiff,  caused  by  the  negligence  of  the  defendant.  In  the  re- 
port of  the  case,  the  first  count  is  given  at  length.  It  sets  forth  that 
the  defendant  received  of  the  plaintiff  a  slave  at  a  certain  price,  under 
an  agreement  that  if  he  did  not  like  her,  he  was  to  return  her  in  two  or 
three  weeks,  and  while  she  was  in  possession  of  the  defendant,  by  being 
exposed  to  the  severity  of  the  weather,  her  hands  were  so  frozen  that 
she  lost  several  of  her  fingers,  and  was  otherwise  disabled,  so  that  she 
was  of  little  value,  and  thereupon  the  defendant  refused  to  keep  her,  or 
to  compensate  the  plaintiff  for  her.  The  second  count  is  stated  by  the 
reporter  to  have  resembled  the  first,  except  that  it  contained  averments 
that  the  slave  was  sound  and  in  good  health,  when  delivered  to  the  de- 
fendant, and  that  the  injury  she  sustained  was  by  his  negligence.  The 
court  of  appeals  directed  the  court  below  to  instruct  the  jury,  that  "  if 
the  injury  to  the  slave  was  not  imputable  to  the  neglect  of  the  defen- 
dant, he  would  not  be  responsible  therefor,  unless  he  expressly  agreed  to 
be  so  liable ;  and  that  as  no  such  agreement  is  charged  to  have  been 
made,  he  is  only  bound  (according  to  the  declaration)  for  ordinary  care 
of  the  slave,  that  is,  such  care  as  any  man  of  common  prudence,  and 
capable  of  governing  a  family,  takes  of  his  own  concerns ;  and  that  he 
is  therefore  answerable  for  neglect  only." 

Beverley  v.  Brooke,  2  Wheat.  100.  was  a  suit  to  recover  the  value  of 
three  slaves,  hired  by  the  plaintiff  to  the  defendant,  as  master  of  a  ves- 
sel called  the  Sophila,  and  received  on  board  the  vessel  as  mariners,  on 
the  usual  wages,  without  any  special  contract.  The  slaves  escaped  at 
Liverpool,  and  were  totally  lost.  The  plaintiff  being  one  of  the  own- 
ers of  the  vessel,  alleged  that  he  hired  the  slaves  for  the  voyage,  on 
which  the  vessel  was  bound,  expecting  the  defendant  would  pursue  the 
orders  he  should  receive.  He  contended  that  the  true  construction  of 
the  defendant's  orders,  required  him  in  the  state  of  things  which  hap- 
pened, to  proceed  to  Tonningen  instead  of  Liverpool,  and  he  insisted, 
that  if  the  defendant  had  violated  his  instructions,  such  violation  sub- 
jected him  to  every  loss  sustained  in  consequence  thereof  But  the  su- 
preme court  of  the  United  States  decided  otherwise.  Marshall,  C.  J. 
delivering  the  opinion  of  the  court,  said,  "  The  court  is  not  satisfied 
that  the  danger  of  the  slaves  escaping,  might  not  be  as  great  on  the  con- 
tinent as  in  England.  But  at  any  rate,  Liverpool  was  one  of  the  con- 
tingent termini  of  the  voyage,  and  was  consequently  within  the  hazards 
to  which  the  plaintiff  knew  his  property  might  be  exposed.  The  dan- 
ger of  losing  them,  should  the  Sophila  proceed  to  Liverpool,  did  not 
deter  him  from  placing  the  slaves  on  board  the  vessel,  nor  from  direct- 
ing the  master  to  go  to  Liverpool,  nor  from  giving  full  discretion  re- 
specting his  port,  in  an  event  which  was  far  from  being  improbable." 
The  judgment  for  the  defendant  was  therefore  affirmed. 

In  Spencer  v.  Pilcher,  8  Leigh  505.  the  evidence  proved  that  the  de- 
fendant hired  the  slave  from  the  1st  of  January  1829,  to  the  25th  of 
December  of  that  year.  There  was  no  special  agreement  made  at  the 
time,  how,  or  where  he  was  to  be  employed ;  but  many  circumstances 
rendered  it  probable  that  he  was  to  be  employed  that  year,  as  he  had 
been  the  year  before,  on  the  defendant's  plantation,  in  Wood  county,  in 
the  ordinary  agricultural  and  domestic  business  of  a  farm,  without  be- 
ing subjected  to  extraordinary  risks.     The  hire  to  be  paid  for  him  in 


568  Declarations  in  case. 

1829,  was  the  same  that  had  been  paid  the  year  before,  when  the  boy 
was  smaller,  and  was  no  more  than  was  usually  paid  for  boys  of  his  age 
and  size,  kept  on  farms  in  Wood  county,  if  as  much.  On  the  loth  of 
December,  only  ten  days  before  the  expiration  of  the  term  of  hiring, 
the  defendant  set  out  with  two  boats  loaded  with  produce  bound  for 
Cincinnati  in  Ohio,  and  thence  to  markets  on  the  Mississippi,  taking 
the  boy  with  him  and  only  two  others  to  manage  the  two  boats.  On 
their  voyage  down  the  Ohio,  and  soon  after  they  passed  below  the  line 
of  Wood  county,  the  slave  was  accidentally  drowned.  On  this  state  of 
facts,  connected  with  certain  declarations  of  the  defendant  before  he  set 
out,  admitting  his  responsibility  in  case  of  the  loss  of  the  slave,  the 
jury  found  a  verdict  for  the  plaintiff,  and  the  circuit  court  gave  judg- 
ment thereupon,  which  judgment,  the  court  of  appeals  affirmed.  Par- 
leer,  J.  said,  "  the  jury  might  reasonably  have  inferred  that  the  fair  un- 
derstanding of  the  contract  was  to  employ  the  boy  in  agricultural  or  do- 
mestic purposes  in  the  county  of  Wood,  or  its  vicinity.  The  com- 
mencement of  a  voyage  to  Cincinnati  and  New  Orleans,  was  a  viola- 
tion of  that  understanding,  subjecting  him  to  risks  and  dangers  not  con- 
templated or  estimated  when  the  hiring  took  place.  He  was  lost  to  the 
owner  in  the  prosecution  of  that  unauthorized  use  of  him,  and  I  am  of 
opinion,  that  the  bailee  is  responsible  for  the  loss." 

Form  of  declaration. — The  following  precedent  is  taken  from  the 
declaration  in  Randolph  v.  Hill,  7  Leigh  383.  Upon  the  question  whe- 
ther the  verdict  in  this  case  should  be  set  aside  as  contrary  to  evidence, 
the  judges  who  sat  in  the  court  of  appeals  were  equally  divided  in 
opinion,  but  there  was  no  question  as  to  the  sufficiency  of  the  declara- 
tion. 


For  this,  to  wit,  that  whereas  the  said  defendant,  on  the 


day  of ,  in  the  year  182    ,  at  the  county  aforesaid,  hired 

of  the  plaintiff,  for  and  during  the  space  of  one  year,  a  negro 
man  slave,  the  property  of  the  plaintiff,  to  work  in  the  coal-pits 
of  the  said  defendant,  in  the  county  aforesaid,  which  said  slave 
was  accordingly  put  into  the  possession  of  the  said  defendant  for 
the  purpose  aforesaid,  and  the  defendant  was  bound  to  keep  all 
his  machinery  and  utensils  in  proper  order  and  repair,  and  to 
work  the  said  coal-pits  in  a  good  and  collier  like  manner,  and  to 
use  due  and  ordinary  care  and  diligence  to  prevent  any  hurt, 
damage,  injury  or  accident,  from  befalling  or  happening  to  the 
labourers  and  workmen  employed  about  the  same,  and  working 
in  the  said  pits:  yet  the  said  defendant,  well  knowing  the  pre- 
mises, but  disregarding  the  rights  and  interests  of  the  plaintiff 
in  this  behalf,  and  careless  of  the  safety  of  the  property  of  the 

said  plaintiff,  on  the day  of ,  in  the  year  182    ,  at 

the  county  aforesaid,  did  carelessly  and  negligently  suffer  and 
permit  the  said  slave,  so  hired  as  aforesaid,  by  the  said  defen- 
dant, of  the  said  plaintiff,  to  descend  and  enter  into  the  said 
coal-pits  at  a  time  when  there  was  impure,  damp  and  noxious 


Declarations  in  case.  669 

air  therein,  so  that  the  safety  of  the  said  slave  was  greatly  en- 
dangered ;  and  he  the  said  defendant  well  knowing  the  said 
coal-pits  to  be  filled  with  impure,  damp  and  noxious  air,  as 
aforesaid,  on  the  day  and  year  last  aforesaid,  at  the  county 
aforesaid,  did  cause  and  direct  the  said  slave  to  be  kept  at  work 
in  the  said  pits,  so  filled  with  damp,  impure  and  noxious  air  as 
aforesaid,  until  the  said  slave,  the  property  of  the  plaintiff,  em- 
ployed and  hired  as  aforesaid,  was  killed. 

And  whereas  also  the  said  defendant,  on  the  day  of 

,  in  the  year  182    ,  at  the  county  aforesaid,  hired  of  the 

plaintiff,  for  and  during  the  space  of  one  year,  a  negro  man  slave 
named  Jim,  the  properly  of  the  said  plaintiff,  to  work  in  the 
coal-pits  of  the  said  defendant,  in  the  county  aforesaid,  which 
said  slave,  the  property  of  the  said  plaintiff',  was  accordingly 
delivered  and  put  into  the  possession  of  the  defendant  for  the 
space  aforesaid,  and  for  the  purpose  aforesaid,  and  the  said  de- 
fendant was  bound  to  keep  all  his  fixtures,  machinery  and  uten- 
sils and  pits,  in  proper  order  and  repair,  and  to  work  the  said 
pits  in  a  good  and  collier  like  manner,  and  to  use  due  and  ordi- 
nary care,  management  and  diligence  to  prevent  any  hurt,  da- 
mage, injury  or  accident,  from  befalling  or  happening  to  the  said 
slave,  the  property  of  the  plaintiff",  while  in  his  employment  as 
aforesaid :  yet,  the  said  defendant,  well  knowing  the  premises, 
but  disregarding  the  rights  and  interests  of  the  plaintiff  in  this 
behalf,  and  careless  and  negligent  of  the  safety  of  the  said  slave, 

the  property  of  the  said  plaintiff,  on  the day  of , 

1S2  ,  during  the  period  for  which  the  said  slave  was  hired  as 
aforesaid  to  the  said  defendant,  did  order  and  direct,  and  cause, 
the  said  slave  to  go  into  the  said  coal-pits  of  him  the  said  de- 
fendant, while  the  same  was  filled  with  nitrogen  gas,  whereby 
the  life  of  the  said  slave  was  greatly  endangered  and  put  in 
jeopardy ;  and  the  said  defendant,  on  the  day  and  year  last 
aforesaid,  well  knowing  the  said  coal-pits  to  be  filled  with  nitro- 
gen gas,  caused  and  directed  the  said  slave,  the  property  of  the 
plaintiff,  to  be  kept  at  labour  and  work  in  the  said  coal-pits,  so 
filled  as  aforesaid  with  nitrogen  gas,  until  the  said  slave,  the 
property  of  the  said  plaintiff",  was  thereby  killed,  whereby  the 
plaintiff"  saith  he  is  injured  and  hath  sustained  damage  to  the 
value  of  1000  dollars;  and  therefore  he  sues  &c. 

4.  Bij  the  owner  of  a  runaway  slave  against  a  sheriff  for  not  fur' 
nishing  the  slave,  while  in  jail,  with  bed-covering  and  fuel. 

The  sheriff  is  ex  officio  jailor,  and  is  bound  to  furnish  a  runaway  com- 
mitted to  jail,  in  the  winter  season,  with  bed-covering  and  fire.     Dahney 
V.  Taliaferro,  4  Rand.  256.     If  the  sheriff  neglect  to  make  any  provi- 
72 


570  Declarations  in  case. 

sion  of  this  kind,  and,  in  consequence  of  his  negligence,  the  health  of 
the  runaway  be  injured,  the  owner  of  the  runaway  may  maintain  an  ac- 
tion on  the  case,  for  damages,  against  the  sheriff.  Ibid.  The  action  will 
lie  against  the  sheriff,  although  the  misconduct  was  not  by  himself  but 
by  his  turnkey  or  servant.     Ibid. 

The  following  precedent  is  copied  from  the  declaration  in  Dahney  v. 
Taliaferro : 

For  that  whereas,  by  the  law  and  custom  of  this  land,  the  she- 
riff of  each  county  within  this  commonwealth  is  the  keeper  of 
the  public  jail  for  each  county,  respectively,  and  bound  to  keep 
the  said  jail,  in  all  things  as  the  law  directs,  for  the  reception, 
confinement  and  safe  keeping  of  all  persons  committed  by  law- 
ful authority,  to  be  confined  in  said  jails  as  prisoners:  And 
whereas  the  said  sheriffs  and  keepers  of  the  jails  as  aforesaid, 
are  bound  by  the  laws  of  the  land  to  furnish  every  prisoner  con- 
fined by  lawful  authority  in  the  jails  as  aforesaid,  with  whole- 
some and  sufficient  food,  with  sufficient  fuel,  when  necessary 
and  proper,  and  with  cleanly  and  sufficient  bed-covering,  and 
when  any  prisoner  so  as  aforesaid  committed,  by  lawful  autho- 
rity, shall  be  a  runaway  negro  slave,  to  advertise  the  same,  from 
time  to  time,  in  manner  and  form  as  by  the  act  of  assembly  in 
such  case  made  and  provided,  is  required  :  And  whereas  the 
said  6r.  D.  before  and  at  the  time  of  the  loss  hereinafter  next 
mentioned,  was,  and  from  thence,  hitherto,  hath  been,  and  still 
is,  sherifT  and  keeper  of  the  jail  of  the  county  of  K.  W.  afore- 
said, and  as  such  hath,  for  and  during  all  that  time,  taken,  and 
still  doth  take,  upon  himself  to  perform  the  duties  of  keeper  of 
the  jail  of  said  county,  and  to  keep  the  same,  as  by  lav^r  directed, 
for  the  reception,  confinement  and  safe  keeping  of  all  prisoners 
lawfully  committed  to  the  jail  of  the  said  county,  and  more  es- 
pecially for  the  safe  keeping,  care  and  preservation  of  runaway 
negro  slaves  lawfully  committed  to  the  said  jail  as  the  law  di- 
rects. And  the  plaintiff  in  fact  saith,  that  the  said  G.  D.,  she- 
riflf  and  keeper  of  the  public  jail  of  the,  aforesaid  county,  as 
aforesaid,  so  being  such  keeper,  and  so  taking  upon  himself  all 
the  duties  which  appertain  to,  and  of  right  belong,  to  his  office 

as  keeper  as  aforesaid,  heretofore,  to  wit,  on  the  day  of 

January  1821,  at  the  county  aforesaid,  then  and  there,  did  re- 
ceive into  the  said  jail,  for  safe  keeping  according  to  law,  a  cer- 
tain runaway  negro  slave  named  Bartlett,  the  property  of  the 
plaintiff,  of  great  value,  to  wit,  of  the  value  of  500  dollars.  And 
the  said  plaintiff  in  fact  further  saith,  that  the  said  negro  slave 
named  Bartlett,  was,  then  and  there,  from  thence  until,  and  at 
the  time  of  the  loss  hereinafter  mentioned,  within  the  jail  of  the 
said  county  confined,  and  during  all  that  time  abided  in  the  said 


Declarations  in  case.  671 

jail  as  a  runaway.  And  the  said  plaintiff  in  fact  further  saith, 
that  at  the  time  the  said  G.  D.,  sheriff  ar>d  keeper  as  aforesaid, 
did  receive  the  said  runaway  negro  slave  into  the  jail  of  the 
said  county  as  aforesaid,  the  said  negro  slave  did  of  right  belong 
to  the  plaintiff,  and  was  of  sound  health,  limbs  and  body.  Yet 
the  said  G.  D.  so  being  sheriff  and  keeper  of  the  jail  of  the 
county  of  K.  W.  as  aforesaid,  not  regarding  his  several  under- 
takings, and  his  duty  as  sheriff  and  keeper  of  the  jail  aforesaid, 
as  aforesaid,  did  not  keep  the  said  jail,  and  the  said  negro  slave 
last  mentioned,  therein  confined  as  a  runawaj',  and  so  received 
in  said  jail  as  aforesaid,  safely  and  without  diminution  of  value 
or  loss,  and  furnish  the  said  negro  slave,  confined  as  aforesaid, 
with  wholesome  and  sufficient  food,  with, fire  when  necessary 
and  proper,  and  with  cleanly  and  sufficient  bed-covering,  and 
advertise  the  said  runaway,  confined  as  aforesaid,  from  time  to 
time,  as  was  his  duty,  and  comply  with  his  duty,  as  sheriff  afore- 
said, as  the  law  directs,  but,  on  the  contrary  thereof,  the  plaintiff 
in  fact  saith,  that  the  said  G.  D.,  sheriff  and  keeper  aforesaid, 
and  those  acting  for  him,  so  negligently  and  carelessly  behaved 
and  conducted  him  and  themselves,  in  that  behalf,  that  after- 
wards, and  whilst  the  said  runaway  negro  slave  named  Bartlett, 
remained  and  abided  in  the  jail  of  thecounty  of  iT.  W.,  received 
into  and  confined  as  aforesaid,  to  wit,  on  the  same  day  and  year 
as  aforesaid,  the  said  negro  slave,  prisoner  as  aforesaid,  became 
diseased,  frostbitten  from  cold,  crippled  and  maimed,  and  was 
injured  by  and  through  the  mere  negligence,  carelessness,  and  de- 
fault in  duty  of  him  the  said  G.  D.  sheriff  and  jailor  as  aforesaid, 
and  was,  and  still  is,  since  his  confinement  aforesaid,  wholly 
lost,  and  of  no  value  to,  the  plaintiff,  to  the  damage  of  the  plain- 
tiff 1000  dollars  :  "Wherefore  he  brings  this  suit. 

6.  By  the  owner  of  a  slave  received  in  jail,  against  the  slieriff  for 
his  negligence  in  suffering  the  slave  to  escape. 

Burley  v.  Griffith,  8  Leigh  442.  was  an  action  on  the  case,  by  the 
owner  of  a  slave,  committed  to  jail  for  safe  keeping,  under  the  act  of 
Feb.  25.  1824,  Sess.  Acts  1823-4,  p.  38.  ch.  35.  §  4.  Sup.  to  Rev. 
Code,  p.  237.  In  that  case,  it  was  decided  that  the  warrant  to  the  jai- 
lor, authorizing  him  to  receive  the  slave  into  his  custody,  and  confine 
him  in  jail,  might  go  in  evidence  to  the  jury,  although  it  was  not  sta- 
ted, on  the  face  of  the  warrant,  that  the  justice  granting  it  was  of  opi- 
nion the  slave  might  be  so  confined  without  public  inconvenience,  and 
although  the  warrant  was  not  under  the  seal  of  the  justice. 

It  was  objected  to  the  declaration,  in  Burley  v.  Ch-iffith,  that  the  name 
of  the  justice,  who  issued  the  warrant,  was  not  stated.  But  the  court 
considered  this  an  objection,  having  no  substance  in  it.  It  was  over- 
ruled on  general  demurrer. 


672  Declarations  in  case. 

The  substance  of  the  counts  in  Burley  v.  Griffith,  is  given  in  the  re- 
port of  the  case. 

6.  Agai7ist  a  sheriff  for  an  escape.     1  Rob.  Prac.  75,  6. 

Where  sheriff  making  arrest  turns  prisoner  over  to  his 
SUCCESSOR. — Field  v.  Cocke,  reported  in  BarradaW s  MS.  Rep.  173. 
was  an  action  on  the  case  for  an  escape  upon  mesne  process,  and  the  ob- 
jection was  taken  that  Pitchford,  the  prisoner  who  escaped,  was  not  so 
delivered  by  Winn,  the  old  sheriff,  (in  whose  time  he  was  first  commit- 
ted,) to  the  defendant,  the  new  sheriff,  as  to  make  the  defendant  charge- 
able for  the  escape.  It  appeared,  that  on  the  day  the  defendant  was 
sworn  in  office,  Winn,  the  old  sheriff,  brought  the  keys  of  the  prison 
into  the  courthouse,  where  the  defendant  was,  and  laid  them  upon  the 
table,  saying  there  were  two  prisoners  in  jail,  upon  which,  the  defendant 
took  up  the  keys.  Pitchford  was  one  of  these  prisoners,  and  he  after- 
wards remained  in  jail  61  days,  during  which  time  he  was  fed  by  the 
defendant's  order.  At  the  end  of  the  61  days  he  broke  prison.  On  the 
part  of  the  plaintiff,  it  was  contended  that  as  the  prisoner  was  not  in 
execution,  he  might  be  delivered  over  to  the  new  sheriff  without  inden- 
ture. But  the  defendant  insisted  that  an  assignment  by  indenture  was 
necessary  in  all  cases,  whether  the  prisoner  was  in  execution  or  not. 
And  so  the  court  unanimously  decided. 

Soon  after  this  decision,  the  act  of  1748  was  passed.  For  removing 
all  controversies  touching  the  manner  of  turning  over  prisoners,  upon  a 
sheriff's  quitting  his  office,  it  enacted  that  the  delivery  of  prisoners,  by 
indenture  between  the  old  sheriff  and  the  new,  according  to  the  prac- 
tice in  England,  or  the  entering  upon  record  in  the  county  court,  the 
names  of  the  several  prisoners  and  causes  of  their  commitment,  deli- 
vered over  to  the  new  sheriff,  shall  be  sufficient  to  discharge  the  late 
sheriff  from  all  suits  or  actions  for  any  escape  that  shall  happen  after- 
wards. 5  Hen.  Stat,  at  Large  522.  §  14,  15,  This  statute  is  re-enacted 
in  the  code  of  1819,  omitting  merely  the  words  "  according  to  the  prac- 
tice in  England."     1  R.  C.  282.  §  26. 

For  that  whereas,  on  the  10th  day  of  April  in  the  year  1789, 
at  a  general  court  held  before  the  judges  thereof,  at  the  court- 
house in  the  city  of  jR.  to  wit,  in  the  county  aforesaid,  the  said 
A.  administratrix  of  J.  M.  deceased,  recovered  a  judgment 
against  one  D.  D.  for  &c.  and  505.  for  her  costs  by  her  about 
her  suit  in  that  behalf  expended,  &c.  as  by  the  record  and  pro- 
ceedings thereof  in  the  said  general  court,  before  the  judges 
thereof,  at  the  courthouse  in  the  city  of  R.  in  the  county  afore- 
said remaining,  appears ;  and  whereupon  it  was  in  such  man- 
ner proceeded,  that  afterwards,  to  wit,  on  the  21st  day  of  May, 
in  the  year  1789,  a  certain  writ  of  the  commonwealth  of  capias 
ad  satisfaciendum,  issued  out  of  the  general  court  aforesaid, 
against  the  said  !>.,  directed  to  the  then  sheriff  of  the  county  of 


Declarations  in  case.  673 

H.  aforesaid,  by  which  said  writ  the  said  then  sheriff  was  com- 
manded that  he  should  take  the  said  D.  D.  and  have  his  body 
before  the  general  court  at  the  capitol  in  Richmo7id,  on  the  first 
day  of  the  court  then  next  ensuing,  to  satisfy  the  said  A.  Sec. 
and  that  he  should  have  then  there  that  writ;  which  said  writ, 
afterwards,  and  before  the  general  court  next  ensuing  the  said 
21st  May  1789,  to  wit,  on  the  same  day  and  year  last  men- 
tioned, at  the  county  aforesaid,  was  delivered  to  TV.  F.  then 
sheriff  of  the  said  county  of  H.,  by  virtue  of  which  said  writ, 
the  said  W.  F.  afterwards,  and  before  the  return  day  thereof, 

to  wit,  on  the day  of ,  in  the  year  1789,  at 

the  county  aforesaid,  (the  said  W.  F.  being  then  sheriff  of  the 
county  of  H.  aforesaid,)  the  said  D.  D.  by  his  body  took,  and 
arrested,  and  him  in  his  custody  there  had  and  detained,  until 
the  said  TV.  F.  afterwards,  to  wit,  at  a  court  held  for  the  said 
county  of  H.  on  the  first  day  of  February,  in  the  year  1790,  at 
the  courthouse  thereof,  to  wit,  at  the  county  aforesaid,  entered 
of  record  in  the  said  court  the  name  of  the  said  D.  D.  and  the 
cause  of  his  commitment,  and  duly  delivered  over  the  said  D. 
D.  to  the  said  /.,  the  said  I.  then  being  sheriff  of  the  said 
county  of  H.,  and  the  said  L,  then  and  there,  had  and  detained 
the  said  D.,  by  his  body,  for  the  cause  aforesaid,  until  the  said 
I.  contriving,  and  fraudulently  intending  to  deprive  the  said 
Anne  of  her  remedy  aforesaid,  by  reason  of  that  imprisonment, 
for  obtaining  the  money  aforesaid,  afterwards,  to  wit,  on  the 

day  of  ■  ,  in  the  year ,  at  the  county 

aforesaid,  the  said  I.  being,  then  and  there,  sheriff  of  the  county 
aforesaid,  without  any  authority  whatever,  and  without  the  li- 
cense of  the  said  Anne,  or  of  the  said  general  court,  and  against 
the  will  of  the  said  An?ie,  permitted  the  said  D.  D.  to  go  at 
large  and  escape  where  he  would,  and  the  said  D.  D.  did,  then 
and  there,  escape  with  the  consent  of  the  said  /.,  and  hath,  ever 
since,  eloigned  himself  to  places  altogether  unknown  to  the  said 
Anne,  and  she,  the  said  A7ine,  was  not,  at  the  time  of  the  said 
escape,  and  is  not  yet,  paid  the  money  afterwards,  or  any  part 
thereof,  but,  by  reason  of  the  premises,  is  deprived  and  de- 
frauded of  her  remedy  for  obtaining  the  said  money,  to  the  da- 
mage &c. 

7.  For  unlawful  distress.     1  Rob.  Prac.  74,  5. 

Where  the  trespass  is  waived. — JBranscomb  v.  Bridges  S^c.  X 
Barn.  &  Cres.  145.  8  Eng.  Com.  Law  Rep.  43.  was  case  for  an  exces- 
sive distress.  It  appeared  by  the  plaintiff's  evidence  that  the  rent  in 
arrear  had  been  tendered  before  the  distress  was  made.  Upon  which  it 
was  objected  that  the  action  should  have  been  trespass  not  case,  and  it 


674  Declarations  in  case. 

was  argued  that  as  the  rent  due  had  been  tendered  before  the  distress 
was  made,  and  no  subsequent  demand  and  refusal  of  it  was  proved,  the 
taking  of  the  plaintiff's  goods  was  without  any  colour  of  right,  and 
therefore  properly  the  subject  of  an  action  of  trespass.  But  the  court 
of  king's  bench  overruled  the  objection.  "  Supposing,"  said  the  court, 
"  that  trespass  would  lie,  still  the  plaintiff  was  at  liberty  to  waive  the 
trespass  and  bring  an  action  on  the  case.  It  has  frequently  been  deci- 
ded that  trover  will  lie  after  a  wrongful  taking,  and  that  is  a  stronger 
case ;  for  there  the  goods  are  by  the  pleadings  stated  to  have  come  law- 
fully into  the  defendant's  possession." 

In  Holland  v.  Bird  S^c.  10  Bing.  15.  25  Eng.  Com.  Law  Rep.  14.  it 
was  objected  that  the  second  count  was  misjoined,  upon  the  ground  that 
it  disclosed  the  subject  matter  of  an  action  of  trespass,  while  the  residue 
of  the  declaration  was  conceived  in  case.  But  the  court  of  common 
pleas  thought  the  second  count  and  the  form  of  action  correct.  Tindal, 
C.  J.  said,  "The  form  of  that  count  is,  that  the  defendant  having  dis- 
trained the  plaintiff's  goods  for  the  rent  of  apartments  demised  to  the 
plaintiff,  the  plaintiff  tendered  the  rent  in  arrear  and  the  costs  of  the 
distress,  which  the  defendant  ought  to  have  accepted  and  redelivered 
the  plaintiff's  goods,  but  when  requested,  wrongfully  refused  so  to  do. 
In  its  very  form  therefore  it  is  a  count  in  case,  because  it  consists  of 
matter  of  non-feasance,  and  non-feasance  only.  It  is,  in  substance  also 
a  count  in  case,  the  form  of  action  which  has  been  correctly  adopted, 
because,  although  a  wrongful  taking  may  be  a  ground  of  trespass,  there 
are  many  cases  in  which  a  party  may  waive  the  trespass  and  sue  in  case. 
Such  is  the  action  in  trover,  and  no  one  will  deny  that  trover  lies  for  the 
subsequent  detainer  when  the  original  seizure  is  an  act  of  trespass.  If 
trover  will  lie,  which  is  only  a  subdivision  of  the  action  on  the  case, 
why  should  not  case  also,  in  its  more  expanded  form.  Branscomb  v. 
Bridges  goes  further  than  the  present  decision,  because  a  sufficient  ten- 
der before  the  distress  renders  the  whole  proceeding,  illegal ;  a  sufficient 
tender  after  distress  only  the  subsequent  detainer.  But  even  under  the 
old  statute  of  Marlbridge,  which  gives  an  action  on  the  case  for  taking 
outrageous  toll,  the  taking  toll  where  none  is  due  has  been  held  outra- 
geous within  the  equity  of  the  statute,  and  consequently  the  subject  of 
an  action  on  the  case." 

In  Olinger  v.  M '  Chesney ,  7  Leigh  660.  the  first  count  in  the  declara- 
tion was  in  case  for  a  distress  where  no  rent  was  in  arrear  and  unpaid, 
but  the  action  was  not  brought  under  the  statute,  no  sale  having  taken 
place  of  the  goods  distrained.  As  a  distress  when  there  is  no  rent  in 
arrear,  is  a  trespass,  it  was  contended  that  case  would  not  lie.  But  the 
court  of  appeals  decided  that  it  was  competent  for  the  plaintiff  to  waive 
the  trespass  and  declare  in  case. 

The  second  count  in  Holland  v.  Bird  S^c.  and  the  substance  of  the 
first  count  in  Olinger  v.  M'Chesney,  are  set  forth  in  the  respective  re- 
ports of  those  cases. 


Declarations  in  case.  575 

8.  Against  the  cleric  of  a  court  for  improperly  endorsing  credits  on 

an  execution. 

In  an  action  against  the  clerk  of  a  court  for  improperly  endorsing 
credits  on  an  execution,  it  should  be  averred  that  the  defendant,  as  clerk 
of  the  court,  made  the  endorsements  on  the  execution,  without  the  order 
or  consent  of  the  plaintiff,  or  that  the  endorsements  were  made  by  direc- 
tion of  the  defendant,  without  any  such  order  or  consent  of  the  plaintiff. 
If  the  declaration  merely  charge  that  the  endorsements  were  made  by 
the  clerk  himself,  or  by  his  privity  or  consent,  whereby  the  plaintiff  lost 
the  amount  credited  by  such  endorsements,  it  does  not  set  forth  a  good 
cause  of  action.     Monroe  v.  Webb's  ex'ors,  4  Munf.  73. 

9.  Against  a  deputy  sheriff  for  an  illegal  sale  under  an  execution. 

An  action  on  the  case  will  lie  against  a  deputy  sheriff  for  an  illegal 
sale  under  colour  of  his  office,  of  property  taken  in  execution,  as  for 
example,  a  sale  for  cash  where  the  law  directs  a  sale  on  credit.  Rich- 
ardson V.  Perkins,  4  Munf.  512. 

10.  By  a  sheriff  who  levied  upon  goods  at  the  instance  of  an  execution 
creditor t  and  was  compelled  to  pay  damages  to  a  claimant  of  the 
goods,  to  recover  the  amount  of  those  damages  from  the  execution 
creditor. 

The  following  precedent  is  taken  from  the  fifth  count  in  the  case  of 
Humphreys  v.  Pratt,  5  Bligh's  Par.  Cas.  N.  S.  154. 

And  whereas  before,  and  at  the  time  of,  the  committing  of  the 
grievances  in  this  count  mentioned,  to  wit,  on  &c.  at  &c.  the 
said  plaintiff  was  sheriff  of  the  county  of  ,  and  the  said 
defendant  had,  then  and  there,  caused  to  be  delivered  to  the  said 
plaintiff,  as  such  sheriff,  a  certain  writ,  commonly  called  a  writ 
o^  fieri  facias,  which  had  heretofore  issued  out  of  the  court  of 
&c.  at  the  suit  of  the  said  defendant  against  one  D.  P.,  bearing 
teste  the  28th  day  of  November  in  the  year ,  and  returna- 
ble &c.  and  directed  to  the  sheriff  of  the  said  county  of , 

by  which  said  writ,  the  said  sheriff  was  commanded  that  of  the 
goods  and  chattels  of  the  said  D.  P.  in  his  bailiwick,  he  should 
cause  to  be  levied  the  sum  of  &c. ;  and  the  said  defendant,  then 
and  there,  represented  and  affirmed  lo  the  said  plaintiff  that  the 
said  D.  P.  was  possessed  of  certain  goods  and  chattels,  liable  to 
be  seized  under  the  said  writ,  within  his  bailiwick,  which  goods 
and  chattels  the  said  defendant  would,  then  and  there,  cause  to 
be  shewn  to  the  said  plaintiff,  and,  then  and  there,  required  the 
said  plaintiff  to  seize  said  goods  and  chattels  under  said  execu- 
tion.    And  the  said   plaintiff  says  that  he,  confiding  in  the  said 


576  Declarations  in  case, 

representation  and  aflSrmation  of  the  said  defendant,  and  be- 
lieving the  same  to  be  true,  and  not  I\nowing  to  the  contrary 
thereof,  did,  afterwards,  to  wit,  on  the  day  and  year,  and  at  the 
place  last  aforesaid,  seize,  within  his  bailiwick,  at  the  request, 
and  by  the  directions,  and  at  the  requisition  of  the  said  defen- 
dant, under  the  said  last  mentioned  writ,  certain  goods  and  chat- 
tels, that  is  to  say,  nine  cows  and  three  heifers,  which  were, 
then  and  there,  shewn  by  the  said  defendant  to  the  said  plaintiff', 
as  and  for  the  goods  and  chattels  of  the  said  D.  P.,  liable  to  be 
seized  under  said  writ ;  and  that  the  said  goods  and  chattels 
were  afterwards  claimed  by  one  J.  P.  as  his  property  ;  and  that 
the  said  defendant,  after  such  seizure  and  claim,  insisted  and 
asserted  that  the  said  claim  was  unfounded.  And  the  said  plain- 
tiff" further  saith,  that  the  said  defendant,  in  truth  and  in  fact, 
deceived  and  defrauded  the  said  plaintiff"  in  this,  to  wit,  that  the 
said  last  mentioned  goods  and  chattels  were  not,  at  the  time  of 
the  delivery  of  the  said  writ  to  the  plaintiff",  the  goods  or  chattels 
or  property  of  the  said  D.  P.,  liable  to  be  seized  under  said  writ. 
And  the  said  plaintiff"  further  saith,  that  afterwards,  to  wit,  on 
&c.  at  &c.  one  J.  P.  as  the  true  and  lawful  owner  of  the  said 
last  mentioned  goods  and  chattels,  at  the  time  they  were  so 
shewn  to  the  said  plaintiff",  and  seized  under  the  last  mentioned 
writ,  brought  his  certain  action  against  the  said  plaintiff^,  in  the 
court  of  &c.  before  &c.  to  recover  damages  for  the  seizing  and 
taking  of  the  said  goods  under  the  said  last  mentioned  writ,  and 
such  proceedings  were  thereupon  had,  in  the  said  action,  that 
the  said  J.  P.  afterwards,  to  wit,  on  &c.  before  &c.  at  &c.  by 
the  consideration  and  judgment  of  the  said  court,  recovered 
against  the  said  plaintiff"  a  large  sum  of  money,  to  wit,  the  sum  of 
£.  50.  as  and  for  the  value  of  the  said  goods  and  chattels,  so  seized 
by  the  plainliff"as  last  aforesaid,  and  the  further  sum  of  .£27. 15. 1. 
for  costs  and  charges  by  the  said  J.  P.  about  his  said  suit  in 
that  behalf  expended,  making  together  the  sum  of  £  77.  15.  1., 
and  that  afterwards,  to  wit,  on  &c.  at  &c.  the  said  plaintiff"  was 
forced  and  obliged  to  pay,  and,  then  and  there,  did  pay  to  the 
said  J.  P.  the  said  sum  of  £  77.  15.  1.  and  was  also,  then  and 
there,  forced  and  obliged  to  lay  out  and  expend  a  certain  other 
large  sum  of  money,  to  wit,  the  sum  of  £  40.  in  and  about  de- 
fending the  said  action,  so  brought  against  him  as  last  aforesaid, 
and  in  and  about  taking  and  pursuing  other  necessary  proceed- 
ings, made  incumbent  upon  him  in  consequence  of  the  said  sei- 
zure and  the  said  recovery,  and  was  and  is  otherwise  greatly  in- 
jured. And  the  said  plaintiff"  says,  that  by  reason  of  the  said 
several  premises,  he  has  been  injured,  and  has  sustained  da- 
mage to  the  amount  of  £  500.  ;  and  therefore  he  brings  his  suit 
&c. 


DeclaratioiLS  in  case.  677 

At  the  trial  of  the  general  issue,  there  was  a  verdict  under  this  count 
for  £  77.  15.  1.  The  defendant  moved  in  arrest  of  judgment,  but  his  mo- 
tion was  overruled,  and  judgment  entered  on  the  verdict.  The  cause 
was  carried  from  the  court  of  exchequer  in  Ireland,  to  the  court  of  ex- 
chequer chamber,  and  a  majority  of  the  judges  were  of  opinion  to  af- 
firm the  judgment.  It  was  then  carried  to  the  house  of  lords,  and  there 
fully  and  ably  argued,  both  upon  principle  and  authority.  At  the  con- 
clusion of  the  argument,  lord  Tenterden  said,  that  the  case  required 
consideration.  After  such  consideration,  the  judgment  was  affirmed. 
There  is  no  record  at  length  of  the  reasons  given  in  favour  of  affirm- 
ance. But  lord  Tenterden  "  informed  the  reporter  that  he  put  the  case 
upon  the  ground  that  the  sheriff  was  a  public  officer,  and  (as  his  lord- 
ship expressed  it)  was  placed  between  two  fires." 

11.  B>/  a  deputy  sheriff  against  his  principal  for  turning  him  out  of 

office  without  cause. 

If  a  deputy  sheriff  sue  his  principal  for  turning  him  out  of  office,  in 
violation  of  his  contract,  the  gist  of  the  action  is  that  the  defendant  so 
turned  him  out  without  cause,  and  the  declaration,  in  such  an  action,  is 
fully  answered  by  a  plea  alleging  that  the  plaintiff  has  been  guilty  of  a 
misfeasance  and  other  improprieties  in  office.  Hoge  v.  Trigg ^  4  Munf. 
150. 

12.  For  raising  a  mill  without  authority,  whereby  a  mill  of  the 
plaintiff  was  rendered  useless  and  the  health  of  his  family  in^ 
jured. 

While  the  suit  was  pending,  in  which  the  following  declaration  was 
filed,  the  plaintiff  exhibited  a  bill  in  chancery,  praying  for  an  abate- 
ment of  the  nuisance,  and  for  an  injunction  to  prevent  the  defendant  in 
the  mean  time  from  using  the  water.  Chancellor  Taylor  refused  the 
prayer  of  the  bill,  saying  he  was  clearly  of  opinion  that  in  the  suit  at 
law  the  parties  were  before  the  proper  tribunal.  He  was  of  opinion 
that  a  court  of  equity  might  interfere  in  the  case  of  a  nuisance,  where 
there  is  a  flagrant  violation  of  private  right  attended  with  public  injury, 
when  the  law  would  neither  afford  an  immediate  nor  an  adequate  remedy 
until  irreparable  injury  might  be  done,  but  he  did  not  think  this  one  of 
those  cases.     See  Wingfield  v.  Crenshaw,  4  H.  &  M,  474. 

for  this,  to  wit,  that  whereas  the  said  W.  the  plain- 
tiff, on  the  first  day  of  January,  in  the  year  ISOO,  and  long  be- 
fore that  time,  and  from  that  time  to  the  day  of  the  issuing  of 
the  original  writ  in  this  cause,  was,  hath  been,  and  still  is,  the 
owner,  proprietor,  possessor  and  tenant,  in  fee  simple,  of  a  tract 
of  330  acres  of  land,  adjoining  to,  and  bordering  on  a  certain 
river,  called  the  Southamia,  within  the  parish  of  S.  M.  in  the 
county  of  H.  aforesaid,  the  bed  of  which  said  river  belongs  to 
the  commonwealth,  and  also  of  a  mill  seat  and  a  water  grist 
73 


678  Declarations  in  case, 

mill,  belonging  to  the  plaintiff  on  the  said  land.  Nevertheless, 
the  said  T.  the  defendant,  well  knowing  the  premises,  and  con- 
triving to  injure  the  plaintiff  in  the  health  of  his  family,  resi- 
dent on  the  said  land,  and  lo  debase  the  value  thereof,  as  well 
as  to  render  useless  and  destroy  the  mill  seat  and  water  grist 
mill  aforesaid,  of  the  plaintiff,  on  the  first  day  of  August  1803, 
at  the  county  aforesaid,  without  any  legal  authority,  did  raise 
the  dam  of  a  certain  mill  lo  the  defendant  belonging,  which 
was  situate  at  a  short  distance  below  the  said  mill  of  the  plain- 
tiff, on  the  river  aforesaid,  in  the  county  of  H.  aforesaid : 
whereby  the  said  lands  of  the  plaintiff  were  overflowed,  the 
health  of  the  plaintiff's  family  resident  thereon  greatly  injured, 
and  the  mill  and  mill  seat  aforesaid  were  drowned  and  render- 
ed useless  to  the  plaintiff,  to  his  damage  £  5000.  and  therefore 
he  brings  suit  &c. 

13.  Against  a  surveyor  for  fraudulently  refusing  to  furnish  copies 

of  surveys. 

An  action  on  the  case  will  lie  against  the  surveyor  of  a 
county  for  fraudulently  refusing  to  furnish  copies  of  surveys, 
when  lawfully  demanded,  and  thereby  enabling  a  third  person 
lo  locate  the  lands  therein  described,  before  the  plaintiff.  Pres- 
ton v.  Bowen,  6  Munf.  271. 

13.  Against  a  vendor  for  f-aud. 

Action  lies  for  false  representation  or  suppression  of 
TRUTH. — By  the  common  law,  the  vendor  is  not  answerable  for  the  qua- 
lity of  the  thing  sold,  unless  he  either  warrants  its  quality,  or  makes 
some  false  representation  in  respect  of  it,  or  knowing  of  the  defect 
omits  to  disclose  it,  in  which  case  the  suppression  of  the  truth  is  a  fraud. 
Wilson  V.  Shackle  ford,  4  Rand.  5. 

Case  of  a  false  representation. — The  main  question  in  Pil- 
more  v.  Hood,  5  Bingh.  N.  C.  97.  35  Eng.  Com.  Law  Rep.  43.  was 
whether  there  was  a  substantive  fraud  stated  on  the  face  of  the  declara- 
tion. The  statement  amounted  to  this : — that  the  defendant  Hood,  be- 
ing possessed  of  a  public  house,  for  a  term  of  years,  represented  to  one 
Boicmer,  that  the  trade  of  the  house  was  £  180.  per  month,  all  re- 
tail over  the  counter,  and  Bowmer  contracted  with  the  defendant  for 
the  purchase  of  the  lease  of  the  premises,  with  the  good  will  and  pos- 
session thereof,  for  ^  1175.  ihdX  Boiomer ,  not  being  able  to  complete 
the  purchase,  communicated  to  the  plaintiff  what  the  defendant  had  so 
represented  as  to  the  trade  of  the  house,  of  which  communication  the 
defendant  had  notice,  and  the  plaintiff  confiding  in  the  representation 
so  made,  an  agreement  was  made,  between  the  plaintiff  Bowmer  and 
the  defendant,  that  the  plaintiff  should  be  the  purchaser  of  the  premi- 
ses, in  the  room  and  stead  of  Bowmer,  and  the  plaintiff  afterwards  paid 


Declarations  in  case.  679 

the  said  .£1175.  to  the  defendant.  The  falsity  of  the  representation 
was  averred,  and  it  was  averred  that  both  at  the  time  of  the  original 
agreement  with  Bowmer,  and  at  the  time  of  the  subsequent  agreement 
with  the  plaintiff,  the  defendant  knew  it  to  be  false.  The  court  of 
common  pleas  held  the  action  to  be  maintainable,  considering  there  was 
no  material  distinction  between  the  case  as  stated,  and  the  case  as  it 
would  have  been  if  the  contract  with  Bowmer  had  gone  on.  By  suf- 
fering the  plaintiff  to  enter  into  the  contract  on  the  faith  of  the  com- 
munication to  Bowmer,  the  defendant  was  as  much  guilty  of  a  deceit 
on  the  plaintiff  as  if  he  had,  in  terms,  repeated  the  statement  to  the 
plaintiff. 

Case  of  suppression  of  the  truth. — Where  the  plaintiff  de- 
clared that  the  defendant,  clandestinely  and  deceitfully,  sold  him  a  slave 
for  a  great  price,  knowing  the  said  slave  at  the  time,  and  for  a  long 
time  before,  laboured  under  an  incurable  disease,  not  discovered  by  the 
plaintiff,  and  was  of  no  value,  it  was  moved  in  arrest  of  judgment  that 
the  action  would  not  lie  without  warranty.  But  judgment  was  rendered 
for  the  plaintiff.  Waddill  v.  Chamherlayne,  gen.  ct.  April  1735,  report- 
ed by  Barradall,  and  contained  in  Jefferson's  Rep.  10. 

Declaration  must  always  allege  fraud. — A  count  is  defective, 
as  a  count  for  deceit,  unless  it  charge  the  act  complained  of  to  be  false 
or  fraudulent.  In  Brown  v.  Shields,  6  Leigh  440.  the  second  count  al- 
leged that  the  defendant  represented  a  negro  boy  to  be  his  absolute 
slave,  and,  by  so  representing,  sold  him  to  the  plaintiff  for  %  300 : 
whereas,  in  truth,  the  negro  boy,  at  the  time  of  the  sale,  was  not  the 
absolute  slave  of  the  defendant,  but  was  entitled  to  his  freedom,  when 
he  should  attain  to  a  certain  age.  But  this  count  did  not  allege  that 
the  representation  was  false  or  fraudulent.  All  the  judges  held  it  to  be 
defective.  Tucker,  P.  said,  "  A  representation,  without  a  scienter,  with 
an  allegation  '  that  in  truth  the  slave  was  entitled  to  freedom,'  though 
it  might  have  been  the  foundation  of  an  assumpsit,  if  laid,  certainly 
does  not  prove  a  deceit." 

And  thereupon  the  said  plaintiff  saith,  that  before  the  com- 
mitting of  the  grievances,  by  the  said  TV.  M.  M.  as  hereinafter 
mentioned,  to  wit,  on  the  second  day  of  March  1835,  an  act 
passed  the  general  assembly  of  Virginia  to  incorporate  the  Vir- 
ginia exploring  and  mining  company,  by  which  it  was  declared 
that  a  certain  J.  B.  G.  and  such  other  persons  as  might  there- 
after be  associated  with  him,  for  the  purpose  of  mining,  should 
be,  and  were  thereby  incorporated,  and  made  a  body  politic  and 
corporate,  by  the  name  and  style  of  "  The  Virginia  Exploring 
and  Mining  Company,"  for  the  purpose  of  exploring  and  mining, 
and  they,  and  their  successors,  by  the  same  name  and  style, 
made  capable  of  purchasing,  leasing,  holding  and  conveying  es- 
tate, real  or  personal,  and  by  which  it  was  further  enacted  that 
the  capital  stock  of  the  said  company  should  not  be  less  than 
$  100,000,  nor  more  than  $500,000,  and  should  be  divided  into 
shares  of  S  100  dollars  each  ;  and  before  the  committing  of  the 


580  Declarations  in  case. 

grievances  by  the  said  W.  M.  M.  hereinafter  mentioned,  there 
being  some  reason  to  believe  that  gold,  or  other  metals,  might 
be  found  on  the  land  of  W.  W.  in  the  county  of  L.,  and  W.  W. 
B.,  W.  i?.  jr.,  W.  A.  T.,  D.  A.  T.,  W.  B,  and  W.  H.  being  wil- 
ling to  undertake  the  search  and  exploration  for  the  same,  the 
said  W.  W.,  by  a  deed  bearing  date  the  17th  day  of  September 
1833,  leased  to  the  said  W.  TV.  B.,  W.  B.  jr.,  W.  A.  T.,  D.  A. 
T.,  W.  B.  and  TV.  H.,  fifty  acres  of  the  said  tract  of  land,  to  be 
laid  off  by  certain  metes  and  bounds,  around  a  vein  then  al- 
ready discovered,  and  to  include  the  two  pits  or  shafts  then  al- 
ready sunk  on  the  said  vein  :  to  have  and  to  hold  the  same  to 
them,  and  their  assigns,  for  the  term  of  twenty-seven  years,  from 
the  17th  day  of  September  1833,  with  certain  provisos,  and  on 
certain  conditions,  in  the  said  deed  mentioned,  and  especially 
subject  to  an  interest  of  the  said  TV.  TV.  in  common  with  them  ; 
and  before  the  committing  of  the  grievances  by  the  said  TV.  M. 
M.  hereinafter  mentioned,  all  the  rights  and  interests  granted  by 
the  said  deed  to  the  said  TV.  TV.  B.,   TV.  B.  jr.,   TV.  A.   T.,  D. 

A.  T.,  TV.  B.  and  TT^.  H.,  and  all  the  right  and  interest  so  re- 
served to  the  said  TV.  TV.  in  common  with  them,  had,  for  a  small 
consideration,  been  transferred  to,  and  vested  in,  certain  persons, 
of  whom  the  defendant  was  one,  to  wit,  in  the  defendant  and 
J.  B.  G.,  J.  S.  F.,  B.  a,  J.  TV.  M.,  F.  J.  TV.,  TV.  TV.  S.,  J.  L. 
and  J.  M.  L.  in  the  following  proportions,  that  is  to  say,  the  said 
TV.  M.  M.  had  one  seventh,  the  said  J.  B.  G.  another  seventh, 
the  said  J.  L.  another  seventh,  the  said  J.  M.  L.  a  seventh  and 
a  fourth  of  a  seventh,  the  said  F.  J.  TV.  a  seventh  and  a  third 
of  a  seventh,  the   said  J.  S.  F.  one  half  of  a  seventh,  the  said 

B.  C.  one  third  of  a  seventh,  the  said  J.  TV.  M.  one  third  of  a 
seventh,  and  the  said  TV.  TV.  S.  one  fourth  of  a  seventh  ;  and 
for  the  purpose  of  enabling  the  defendant,  and  the  said  J.  B.  G., 
J.  S.  F.,  B.  a,  J.  TV.  M„  F.  J.  TV.,  TV.  TV.  S.,  J.  L.  and  J.  M. 
L.  to  sell  their  rights  and  interests,  and  to  obtain  for  the  same  a 
much  greater  price  than  the  value  thereof,  the  following  plan 
was  devised  amongst  them,  that  is  to  say,  the  capital  stock  of 
the  Virginia  exploring  and  mining  company,  was  to  be  divided 
into  5000  shares,  upon  which  $  40  a  share  was  to  be  paid,  or 
secured  to  be  paid,  by  each  person  becoming  a  subscriber  to  the 
stock,  amounting,  if  that  sum  was  paid  on  every  share,  to 
$  200,000  for  the  whole  ;  the  defendant  and  the  said  J.  B.  G., 
J.  S.  F.,  B.  a,  J.  TV.  M.,  F.  J.  TV.,  TV.  TV.  S.,  J.  L.  and  J.  M. 
L.  were  to  dispose  of  their  rights  and  interests  before  mentioned, 
to  the  Virginia  exploring  and  mining  company  for  S  200,000,  of 
which  they  were  to  receive  in  money  $  100,000,  which  was  to 
be  raised  by  the  payment  of  $  40  a  share  on  2500  shares  of 
stock,  and  for  the  other  $  100,000,  they  were  to  have  the  other 


Declarations  in  case.  681 

half  of  the  slock  ;  the  taking  in  stock  one  half  the  purchase 
money  was  to  be  held  forth  to  the  public  as  evidence  of  a  very 
favourable  opinion  of  its  value  ;  and  such  other  representations 
were  to  be  made  as  were  calculated  to  induce  subscriptions. 
And  the  said  plaintiff  further  saith,  that  heretofore,  to  wit,  on 
the day  of  August  1S36,  efforts  were  made  by  the  said  de- 
fendant, and  the  said  J.  B.  G.,  J.  S,  F.,  B.  C,  J.  W.  3/.,  F.  J. 
W.,  TV.  W.  S.,  J.  L.  and  J.  M.  L.,  to  obtain  subscriptions  to  the 
stock  in  the  Virginia  exploring  and  mining  company,  and  the 
said  defendant,  to  induce  the  plaintiff"  and  others  to  make  such 
subscriptions,  did,  then  and  there,  in  conversation  with  the 
plaintiff"  and  others,  falsely,  fraudulently  and  deceitfully,  pre- 
tend and  represent  to  the  plaintiff"  and  others,  that  there  was 
then  in  the  orehouse  upon  the  premises,  sought  to  be  disposed 
of,  gold  ore  of  very  rich  quality,  and  in  very  great  quantity,  the 
quantity  being  sometimes  staled  to  be  about  5000  bushels,  at 
others  from  three  to  four  thousand  bushels,  at  others  between 
two  and  three  thousand  bushels,  and  in  none  of  the  said  conver- 
sations being  represented  at  less  than  a  thousand  bushels  ;  that 
the  ore  in  the  orehouse  alone,  was  sufficient  to  yield,  and  would 
yield,  a  very  large  sum  of  money,  estimated  at  from  twenty  to 
twenty-five  thousand  dollars ;  that  the  ore  in  the  orehouse  was 
taken  from  the  tunnels  on  the  said  premises,  one  at  about  forty 
feet  depth,  and  the  other  at  about  seventy  feet  depth,  and  chiefly 
from  the  latter,  and  was  transferred  to  the  orehouse  from  the 
buckets  in  which  it  came  up,  without  any  other  selection  than 
this,  that  the  buckets  were  looked  at  as  they  came  up,  and  those 
which  appeared  to  the  eye  to  contain  ore  not  quite  so  good  as 
the  general  quality,  were  emptied  into  a  pile  outside  of  the  house  ; 
that  if  the  company  should  be  compelled  to  stop  at  the  point  at 
which  the  exploration  had  then  reached,  there  was  a  sufficiency 
of  ore  then  already  exposed,  together  with  that  in  the  orehouse, 
to  reimburse  to  the  stockholders  the  forty  dollars  a  share  requi- 
red on  their  subscriptions;  that  the  mine  had  been  recently 
opened  by  the  defendant,  and  those  associated  with  him,  and  no 
ore  had  been  taken  from  it  except  that  in  the  orehouse,  a  parcel 
of  less  than  a  hundred  bushels  like  that  in  the  orehouse,  and  a 
pile  lying  outside  of  the  house  not  thought  quite  so  good  ;  that 
from  the  said  parcel  of  less  than  a  hundred  bushels,  taken  from 
the  said  tunnels,  and  not  selected,  but  such  as  then  lay  in  the 
orehouse,  nearly  six  hundred  dollars  had  been  obtained  ;  that 
the  residue  of  the  ore  from  the  seventy  foot  tunnel  to  the  surface 
was  believed  to  be  equally  good  with  that  in  the  orehouse  ;  that 
the  ore  was  believed  to  improve  in  richness,  and  the  vein  to  in- 
crease in  thickness,  as  it  went  deeper,  and  that  the  vein  was 
supposed  to  continue  a  great  distance  north  and  south.     And  the 


682  Declarations  in  case. 

said  plaintiff"  farther  saith,  that,  not  knowing  that  these  pre- 
tences and  representations  of  the  defendant  to  him  were  false, 
fraudulent  and  deceitful,  but  believing  them  to  be  true,  and  con- 
fiding in  them,  he  the  said  plaintiff",  in  consequence  of  the  said 
pretences  and  representations,  then  and  there,  subscribed  for 
twenty-five  shares  of  the   stock   in   the  Virginia  exploring  and 

mining  company,  and  afterwards,  to  wit,  on  the  day  of 

September  1837,  paid  to  the  said  defendant  $  250,  and  delivered 
to  the  said  defendant  his  three  negotiable  notes,  duly  endorsed, 
for  $250  each,  which  notes  the  said  plaintiff" afterwards,  to  wit, 
when  the  same  became  due  and  payable  according  to  thetenour 
and  effect  thereof,  paid  and  satisfied  to  the  order  of  the  de- 
fendant. And  the  said  plaintiff"  avers  that  in  truth  and  in 
fact,  there  was  not  in  the  said  orehouse  gold  ore,  in  very  great 
quantity,  as  was  represented,  but  only  a  small  quantity  thereof, 
to  wit,  a  quantity  not  exceeding  400  bushels  ;  and  that  the 
ore  in  the  orehouse  was  not  sufficient  to  yield  a  very  large 
sum  of  money,  as  was  represented,  and  did  not,  in  fact, 
yield  a  very  large  sum  of  money,  but  was  only  sufficient 
to  yield,  and  did  only,  in  fact,  yield  a  very  small  sum  of  mo- 
ney, to  wit,  a  sum  not  exceeding  4000  dollars ;  and  that  the 
ore  in  the  orehouse,  was  not  obtained  from  the  said  tunnels 
in  the  manner  that  was  represented,  but,  on  the  contrary  there- 
of, all  the  ore  in  the  orehouse  which  came  from  the  tunnels  was 
selected  from  the  other  ore  in  the  tunnels  with  much  greater 
care  than  was  represented,  and  the  ore  in  the  orehouse  was 
moreover  composed  in  part  of  ore  obtained  elsewhere  than 
from  the  tunnels ;  and  that  the  ore  then  already  exposed,  toge- 
ther with  that  in  the  orehouse,  was  very  far  from  being  suffi- 
cient to  reimburse  to  the  stockholders  the  forty  dollars  a  share, 
required  on  their  subscriptions,  but,  on  the  contrary  thereof,  has 
proved  insufficient  to  reimburse  them  any  thing;  and  that  the 
mine  had  not  then  recently  been  opened  by  the  defendant  and 
those  associated  with  him,  but  had  been  opened  a  considerable 
time  before,  and  ore  had  been  taken  from  it  besides  that  in  the 
orehouse,  and  besides  the  said  parcel  of  less  than  a  hundred 
bushels,  and  besides  the  pile  lying  outside  of  the  house;  and 
that  the  ore  taken  from  the  said  tunnels,  and  not  selected,  had 
never  yielded  so  largely  as  was  represented  ;  and  that  the  resi- 
due of  the  ore  from  the  seventy  foot  tunnel  to  the  surffice,  was 
not  equally  good  with  that  in  the  orehouse,  but  of  very  inferior 
quality  ;  and  that  the  ore  did  not  improve  in  richness  as  it  went 
deeper;  and  that  the  vein  did  not  continue  a  great  distance 
north  and  south,  but,  on  the  contrary  thereof,  the  vein  was  thin- 
ner north  and  south,  and  soon  ran  out  to  a  thread,  so  as  to  be  of 
no  value,  all  which  the  said  defendant,  at  the  time  of  making 


Declarations  in  case.  683 

his  said  false,  fraudulent  and  deceitful  representations,  well 
knew.     And  so  the  plaintiff  sailb,  that  the  said  defendant,  by 

means  of  the  premises,  heretofore,  to  wit,  on  the daj^  of 

,  1836,  at  the  said  county  of  H.  falsely  and  fraudulently 

deceived  the  said  plaintiff,  in  relation  to  the  shares  of  stock  sub- 
scribed for  by  him  the  said  plaintiff,  and  the  said  shares  are  of 
no  use  or  value  to  him  the  said  plaintiff!  And  the  said  plaintiff 
hath  incurred  further  expense,  to  wit,  an  expense  of  $  31.25  cts. 
in  paying  instalments  required  upon  the  said  twenty-five  shares 
of  stock,  for  carrying  on  the  business  of  the  said  exploring  and 
mining  company. 

And  the  said  plaintiff  also  complains  of  the  said  defendant, 
for  this,  to  wit,  that  the  said  defendant,  heretofore,  to  wit,  on 

the day  of  August  1836,  at  the  said  county  of  H.,  by  his 

false,  fraudulent  and  deceitful  pretences  and  representations  to 
the  said  plaintiff,  in  relation  to  a  certain  mine  in  the  county  of 
L.f  then  and  there,  induced  the  plaintiff  to  subscribe  for  twenty- 
five  shares  of  stock  in  the  Virginia  exploring  and  mining  com- 
pany ;  and  the   said   plaintiff,  afterwards,  to  wit,  on  the  

day  of  September  1836,  at  the  said  county  of  H.,  paid  for  the 
same  the  sum  of  S  1000  for  the  said  defendant,  at  his  request, 
and  the  said  defendant  then  and  there  received  the  said  sum  of 
$  1000,  of  the  money  of  the  plaintiff;  and  the  said  twenty-five 
shares  of  stock  are  of  no  use  or  value  to  the  said  plaintiff;  and 
the  said  plaintiff  hath  incurred  further  expense,  to  wit,  an  ex- 
pense of  S  30.25  cts.,  in  paying  instalments  required  upon  the 
said  twenty-five  shares  of  stock,  for  carrying  on  the  business  of 
the  said  exploring  and  mining  company.  Wherefore  the  said 
plaintiff  saith  that  he  is  injured,  and  hath  sustained  damage  to 
the  amount  of  $2000,  and  therefore  he  brings  suit  &c. 

14.  JPor  a  fraudulent  representation  in  any  other  transaction  than 

a  sale. 

Case  of  a  partial  representation. — Fraud  may  consist  as  well 
in  the  suppression  of  what  is  true,  as  in  the  representation  of  what  is 
false.  If  a  man,  professing  to  answer  a  question,  select  those  facts 
only  which  are  likely  to  give  a  credit  to  the  person,  of  whom  he  speaks, 
and  keep  back  the  rest,  he  is  a  more  artful  knave  than  he  who  tells  a 
direct  falsehood.  See  opn.  of  Chambre,  J.  in  Tapp  v,  Lee,  3  B.  &  P. 
371.  and  opn.  of  Park,  J.  in  Foster  S^c.  v.  Charles,  6  Bingh.  396.  19 
Eng.  Com.  Law  Rep.  113. 

Whether  the  motive  is  material. — It  was  urged  in  Foster  S^c. 
V.  Charles,  that  it  was  not  sufficient  to  shew  that  a  representation,  on 
which  a  plaintiff  had  acted,  was  false  within  the  knowledge  of  the  de- 
fendant, and  that  damage  had  ensued  to  the  plaintiff,  but  that  the  plain- 
tiff must  also  shew  the  motive  which  actuated  the  defendant.      Tindal, 


584  Declarations  in  case. 

C.  J.  said,  "  I  am  not  aware  of  any  authority  for  such  a  position,  nor 
that  it  can  be  material  what  the  motive  was.  The  law  will  infer  an  im- 
proper motive,  if  what  the  defendant  says  is  false  within  his  own  know- 
ledge, and  is  the  occasion  of  damage  to  the  plaintiff." 

Enough  that  defendant  knew  he  was  making  a  false  re- 
presentation.— The  first  verdict  in  Foster  S^c.  v.  Charles,  having  been 
for  the  defendant,  a  new  trial  was  directed.  Upon  the  second  trial, 
Tindal,  C  J.  told  the  jury  that  if  the  defendant  made  representations 
concerning  Jacque,  the  tendency  of  which  was  to  occasion  loss  to  the 
plaintiff,  knowing  such  representations  to  be  false,  and  intending  there- 
by to  benefit  himself,  he  was  guilty  of  fraud  in  the  common  acceptation 
of  the  term  ;  if  he  made  such  representations,  knowing  them  to  be  false, 
without  proposing  thereby  any  advantage  to  himself,  but  proposing  per- 
haps to  benefit  a  third  person,  he  was  guilty  of  fraud  in  the  legal  ac- 
ceptation of  the  term,  and  responsible  to  the  plaintiff  for  any  injury  re- 
sulting from  such  representation.  The  jury  were  of  opinion  that  the  de- 
fendant was  not  actuated  by  the  baser  motive  of  obtaining  an  advantage 
for  himself,  but,  under  the  direction  of  the  judge,  considered  that  he 
was  guilty  of  fraud  in  law,  by  stating  that  which  he  knew  to  be  false, 
and  which  was  the  cause  of  loss  to  the  plaintiff.  Upon  the  verdict  which 
they  found,  the  court  of  common  pleas  gave  judgment  for  the  plaintiff. 
7  Bingh.  105.  20  Eng.  Com.  Law  Rep.  64. 

The  decision  in  Corhett  S^c.  v.  Brown,  8  Bingh.  33.  21  Eng.  Comi 
Law  Rep.  211.  is  upon  the  same  principle. 

What  representation  will  re  considered  as  made  to  the 
PLAINTIFF. — In  each  of  the  cases  of  Foster  Sfc.  v.  Charles,  and  Cor- 
hett 4*c.  V.  Brown,  the  representation  was  made  immediately  to  the 
plaintiff  In  Polhill  v.  Walter,  3  Barn.  «fc  Ad.  114.  23  Eng.  Com. 
Law  Rep.  38.  it  was  not  exactly  so. 

It  appeared  in  this  case  that  a  bill  of  exchange  drawn  on  Hancorne 
was  presented  for  acceptance  by  Armfield,  one  of  the  payees,  and,  at 
the  time,  Hancorne  was  absent.  The  defendant,  who  lived  in  the  same 
house  with  him,  was  induced  to  write  on  the  bill  an  acceptance  as  by 
the  procuration  of  Hancorne,  Armfield  assuring  him  that  the  bill  was 
perfectly  regular,  and  the  defendant  fully  believing  that  the  acceptance 
would  be  sanctioned  and  the  bill  paid  at  maturity  by  the  drawee.  It 
was  afterwards  passed  into  the  plaintiff's  hands,  and,  being  dishonoured 
when  due,  an  action  was  brought  against  Hancorne.  The  defendant 
was  called  as  a  witness  on  the  trial  of  that  action,  and  he,  negativing 
any  authority  from  Hancorne,  the  plaintiff  was  non-suited.  The  ques- 
tion of  deceit  and  fraud  in  the  defendant,  being  left  to  the  jury  as  a 
question  of  fact  on  the  evidence,  they  negatived  all  fraud,  and  then  the 
point  was  whether  the  action  was  maintainable  notwithstanding.  It  was 
said  by  the  plaintiff's  counsel  to  be  enough  if  a  representation  is  made 
which  the  party  making  it  knows  to  be  untrue,  and  which  is  intended 
by  him,  or  which,  from  the  mode  in  which  it  is  made,  is  calculated  to 
induce  another  to  act  on  the  faith  of  it,  in  such  way  as  that  he  may  in- 
cur damage,  and  that  damage  is  actually  incurred.  A  wilful  falsehood 
of  such  a  nature,  was  contended  to  be,  in  the  legal  sense  of  the  word, 
a  fraud,  and  for  this  position  was  cited  the  cases  of  Foster  S^c.  v. 
Charles,  and  Corhett  S^c.  v.  Brown.     The  principle  of  those  cases  was 


Declarations  in  case.  686 

held  to  apply.  "  Here,"  says  lord  Tenterden,  in  delivering  the  judgment 
of  the  court,  "  the  representation  is  made  to  all  to  whom  the  bill  may 
be  offered  in  the  course  of  circulation,  and  is,  in  fact,  intended  to  be 
made  to  all,  and  the  plaintiff  is  one  of  those ;  and  the  defendant  must 
be  taken  to  have  intended  that  all  such  persons  should  give  credit  to  the 
acceptance,  and  thereby  act  upon  the  faith  of  the  representation,  be- 
cause that,  in  the  ordinary  course  of  business,  is  the  natural  and  neces- 
sary result.  If  then,  the  defendant,  when  he  wrote  the  acceptance,  and 
thereby,  in  substance,  represented  that  he  had  authority  from  the  drawee 
to  make  it,  knew  that  he  had  no  such  authority,  (and  upon  the  evidence 
there  can  be  no  doubt  that  he  did,)  the  representation  was  untrue  to  his 
knowledge,  and  we  think  that  an  action  will  lie  against  him,  by  the  plain- 
tiff, for  the  damage  sustained  in  consequence." 

Class  of  cases  in  which  the  representation  must  now  be  in 
WRITING. — The  statute  passed  February  6.  1841,  is  cited  ante,  p.  542. 

And  thereupon  the  said  plaintiff  saith,  that  the  said  plaintiff, 
before  and  at  the  time  of  the  committing  of  the  grievance  by 
the  said  defendant  as  hereinafter  mentioned,  was,  and  from 
thence,  hitherto,  has  been,  and  still  is,  a  druggist,  and  the  trade 
and  business  of  a  druggist  hath,  for  and  during  all  that  time, 
used,  exercised  and  carried  on,  and  still  doth  use,  exercise 
and  carry  on,  at  the  city  of  B.  in  the  state  of  M.  to  wit,  at 
the  county  of  H. ;  and  the  said  defendant,  before  the  time  of 
committing  the  grievance  by  the  said  defendant  as  hereinafter 
mentioned,  was  a  druggist,  and  the  trade  and  business  of  a 
druggist  had,  used,  exercised,  and  carried  on  at  the  city  of  R. 
in  the  state  of  V.  to  wit,  at  the  said  county  of  H. ;  and  the  said 
defendant,  before  the  time  of  the  committing  of  the  grievance 
by  the  defendant,  as  hereinafter  mentioned,  had  dealt  with,  and 
was  trusted  by,  the  said  plaintiff,  for  divers  goods,  wares  and 
merchandize,  on  credit,  in  the  way  of  the  said  trade  and  busi- 
ness ;  and  at  the  time  of  the  committing  of  the  said  grievance 
by  the  defendant,  as  hereinafter  mentioned,  one  W.  G.  C.  was 
using,  exercising  and  carrying  on  the  trade  and  business  of  a 
druggist,  in  the  same  house  and  place  in  which,  before  that  time, 
the  said  defendant  had  used,  exercised  and  carried  on  the  said 
trade  and  business  ;  and  the  said  W.  G.  C.  was  desirous  to  deal 
with,  and  be  trusted  by  the  said  plaintiff,  from  time  to  time,  for 
divers  goods,  wares  and  merchandize,  on  credit,  in  the  way  of 
the  said  trade  and  business  ;  and  thereupon  the  said  defen- 
dant, heretofore,  to  wit,  on  the  26th  day  of  August  1833,  at 
the  said  county  of  H.  contriving  and  intending  to  deceive  and 
defraud  the  said  plaintiff,  and  wrongfully,  deceitfully  and  frau- 
dulently, to  induce,  persuade  and  encourage  the  said  plaintiff  to 
deal  with  the  said  W.  G.  C.  in  the  way  of  his  trade  and  busi- 
less,  and  to  sell  and  deliver  to  the  said  W.  G.  C,  from  time  to 
74 


586  Declarations  in  case, 

time,  divers  goods  ,wares,  and  merchandize,  upon  trust  and  cre- 
dit, wrongfully,  deceitfully  and  fraudulently,  then  and  there, 
made  a  representation  in  writing,  which  writing  was  signed  by 
him,  and  by  the  said  writing,  then  and  there,  wrongfully,  de- 
ceitfully and  fraudulently,  represented  and  affirmed  to  the  said 
plaintiff,  in  substance,  that  ill  health  having  compelled  him  the 
said  defendant  to  retire  from  business,  he  had  sold  out  his  entire 
stock  to  mr.  W.  G.  C,  who  had  then  been  in  his  employment 
for  several  years  past ;  that  the  said  W.  G.  C.  would  probably 
want  some  articles  in  the  plaintiff's  way,  and  that  he  the  defen- 
dant did  not  hesitate  to  express  his  conviction  that  he  the  W.  G. 
C.  would  be  found  punctual  in  any  engagement  he  might  make 
with  the  said  plaintiff,  thereby,  then  and  there,  wrongfully,  wil- 
fully, deceitfully  and  fraudulently  conveying  to  the  plaintiff  this 
meaning,  that  the  said  W.  G.  C.  had  bought  and  paid  for,  and 
was  the  owner  of,  the  defendant's  entire  stock  of  goods,  wares 
and  merchandize,  and  was  fit  to  be  trusted  with  goods  on  credit. 
And  the  said  plaintiff  saith,  that  at  the  time  of  the  said  repre- 
sentation and  affirmation,  and  from  time  to  time  afterwards,  to 

wit,  until  the day  of ,  the  said  W.  G.  C.  applied  to 

the  said  plaintiff  for  goods  to  be  sold  to  him  the  said  W.  G.  C. 
on  credit,  in  the  way  of  the  said  plaintiff's  trade  and  business 
of  a  druggist;  and  the  said  plaintiff,  being  unacquainted  with 
the  circumstances  of  the  said  TV.  G.  C,  except  through  the  said 
representation  and  affirmation  of  the  defendant,  living  at  a  dis- 
tance from  the  said  W.  G.  C's  place  of  residence,  and  not  know- 
ing any  thing  to  the  contrary  of  the  said  representation  and  af- 
firmation, but  confiding  in  and  giving  credit  to  the  same,  and 
believing  therefrom  that  the  said  W.  G.  C.  had  a  capital  equal 
to  the  value  of  the  said  stock  of  goods,  wares  and  merchandize, 
and  was  fit  to  be  trusted  with  goods  on  credit,  afterwards,  to 
wit,  on  the  said  26th  of  August  1833,  at  the  city  of  B.  in  the 
state  of  M.,  to  wit,  at  the  county  of  H.  aforesaid,  and  at  divers 

other  days  and  times,  between  that  day  and  the  day  of 

,  by  means  used  in  consequence  of  the  said  representation 

and  affirmation,  was  induced  to  give  credit  to  the  said  W.  G.  C,' 
and  did,  in  consequence  of  the  said  representation  and  affirma- 
tion, sell  and  deliver  to  him  divers  goods,  on  credit,  to  a  large 
amount,  to  wit,  to  the  amount  of  $  2000,  to  wit,  at  the  county 
of  H.  aforesaid :  whereas,  in  truth  and  in  fact,  the  said  W.  G. 
C,  at  the  time  of  the  said  representation  and  affirmation,  had 
not  paid  the  said  defendant  for  the  said  stock,  but  then  stood  in- 
debted to  him  for  the  same  in  a  large  sum  of  money,  to  wit,  in 
the  sum  of  $7291.65  cents,  and  it  had  been  understood  and 
agreed  between  the  said  W.  G.  C.  and  the  defendant,  before 
the  time  of  the  said  representation  and  affirmation,  that  the 


Declarations  iii  case.  587^ 

said  W.  G.  C.  should  give  a  lien  on  the  said  stock  for  the 
purpose  of  securing  the  payment  of  the  said  large  sum  of 
money :  and  whereas,  in  truth  and  in  fact,  the  said  W.  G.  C, 
at  the  time  of  the  said  representation  and  affirmation,  was  not 
fit  to  be  trusted  by  the  said  plaintiff  with  goods  on  credit, 
and  the  said  defendant  knew  at  that  time  that  he  was  not. 
And  the  said  plaintiff  further  saith,  that  the  sum  of  money  for 
which  goods  were  sold  and  delivered  as  aforesaid  by  the  plain- 
tiff to  the  said  TV.  G.  C,  is  still  wholly  due  and  unpaid  to  the 
said  plaintiff;  that  after  the  making  the  said  representation  and 
affirmation,  to  wit,  on  the  ISth  of  February  1834,  the  said  de- 
fendant procured  a  deed  to  be  executed  by  the  said  W.  G.  C.  to 
one  J.  M.  as  trustee  for  the  said  defendant,  for  the  purpose  of 
securing  to  the  said  defendant  the  payment  of  the  said  large  sum 
of  money,  in  which  the  said  W.  G.  C.  stood  indebted  to  him, 
by  which  deed  there  was  conveyed  all  the  said  C.^s  stock  in 
trade,  as  an  apothecary  and  druggist ;  that  subsequently,  to  wit, 
on  the  30th  July  1834,  the  said  defendant  sold  or  caused  to  be 
sold,  the  whole  stock  on  which  the  said  deed  was  given,  or  so 
much  thereof  as  remained  at  the  time  of  the  sale,  and  the  whole 
proceeds  thereof  were  applied  towards  the  payment  of  the  said 
large  sum  of  money,  in  which  the  said  C.  stood  indebted  to  him  ; 
that  the  said  W.  G.  C.  is  wholly  insolvent,  and  the  said  plaintiff 
is  wholly  unable  to  obtain  from  him  payment  of  the  money 
which  remains  due  and  unpaid  to  the  said  plaintiff  for  the  goods' 
sold  and  delivered  as  aforesaid,  to  wit,  at  the  county  of  H. 
aforesaid. 

And  the  said  plaintiff  also  saith,  that  he,  the  said  plaintiff, 
before  and  at  the  time  of  the  committing  of  the  grievance  by 
the  said  defendant,  as  hereinafter  in  this  count  mentioned,  was, 
and  from  thence,  hitherto  hath  been,  and  still  is  a  druggist,  and 
the  trade  and  business  of  a  druggist  hath,  for,  and  during  all 
that  time,  used,  exercised  and  carried  on,  and  still  doth  use,  ex- 
ercise and  carry  on,  at  B.  in  the  state  of  M.,  to  wit,  at  the  said 
county  of  H. ;  and  the  defendant,  before  the  committing  of  the 
said  grievance  hereinafter  mentioned,  had  been  a  druggist,  and 
the  trade  and  business  of  a  druggist  had  used,  exercised  and 
carried  on  at  R.  in  the  state  of  F.,  to  wit,  at  the  said  county  of 
H. ;  and  the  said  defendant,  before  the  committing  of  the  said 
grievance  hereinafter  mentioned,  had  sold  to  one  W.  G.  C.  all 
the  stock  in  trade  which  he  had  as  a  druggist  in  the  said  city  of 
R.,  to  wit,  in  the  county  of  H.,  and  the  said  W.  G.  C.  in  con- 
sequence of  his  purchase  of  the  said  stock,  had,  before  the  com- 
mitting of  the  said  grievance  by  the  said  defendant,  become  in- 
debted to  the  defendant,  and,  at  the  time  of  the  committing  of 
the  said  grievance,  was  still  indebted  to  the  defendant  in  a  large 


588  Declarations  in  case. 

sum  of  money,  to  wit,  in  the  sum  of  $7291.65  cts.,  and  before 
the  committing  of  the  said  grievance  by  the  said  defendant,  as 
hereinafter  mentioned,  it  had  been  understood  and  agreed  be- 
tween the  said  W.  G.  C.  and  the  defendant,  theit  he  the  said 
W.  G.  C,  for  the  purpose  of  securing  the  payment  of  the  said 
large  sum  of  money,  would  thereafter  execute  a  mortgage,  or 
deed  of  trust,  or  other  lien  on  the  stock  in  trade  which  he  might 
have  at  the  time  of  executing  the  same  ;  and  the  said  W.  G.  C. 
after  the  said  sale  to  him  by  the  defendant,  was  desirous  to  deal 
with,  and  to  be  trusted  by  the  said  plaintiff,  from  time  to  time, 
for  divers  goods,  wares  and  merchandize  on  credit,  in  the  way 
of  his  trade  and  business ;  and  thereupon  the  said  defendant, 
heretofore,  to  wit,  on  the  26th  of  August  1833,  at  R.,  to  wit,  in 
the  said  county  of  H.,  again  colluding  and  intending  to  deceive 
and  defraud  the  said  plaintiff,  and  wrongfully,  deceitfully  and 
fraudulently  to  induce,  persuade  and  encourage  the  said  plain- 
tiff to  deal  with  the  W.  G.  C.  in  the  way  of  his  trade  and  busi- 
ness, and  to  sell  and  deliver  to  the  said  W.  G.  C.  divers  other 
goods,  wares  and  merchandize  upon  trust  and  credit,  then  and 
there,  wilfully,  wrongfully,  deceitfully  and  fraudulently  in  wri- 
ting, signed  by  the  said  defendant,  by  the  name  of  H.  C.  M. 
represented  to  the  plaintiff,  by  the  name  of  mr.  iV.  B.  W.  that  ill 
health  having  compelled  him  the  defendant  to  retire  from  busi- 
ness, he  had  sold  out  his  entire  stock  to  mr.  W.  G.  C.  who  had 
then  been  in  his  employment  for  several  years  past ;  that  mr.  C. 
would  probably  want  some  articles  in  the  plaintiff's  way,  and 
that  he  the  defendant  did  not  hesitate  to  express  his  conviction 
that  mr.  C.  would  be  found  punctual  in  any  agreement  he  might 
make  with  the  plaintiff;  and  the  said  defendant,  then  and  there, 
knowing  that  the  said  W.  G.  C.  was  indebted  to  him,  in  conse- 
quence of  the  said  purchase  of  the  said  stock,  in  a  large  sum  of 
money,  to  wit,  the  sum  of  $7291.65  cts.,  and  that  it  had  been 
understood  and  agreed  that  a  mortgage,  or  deed  of  trust,  or 
other  lien  should  be  given  as  aforesaid,  then  and  there,  although 
it  was  material  that  the  said  plaintiff  should  be  informed  of  the 
same,  wilfully,  wrongfully,  deceitfully  and  fraudulently  with- 
held, suppressed  and  concealed  from  the  plaintiff,  the  fact  that 
the  said  W.  G.  C.  stood  indebted  to  him  the  defendant  in  the  said 
large  sum  of  money,  and  wilfully,  wrongfully,  deceitfully  and 
fraudulently  withheld,  suppressed  and  concealed  from  the  plain- 
tiff, the  fact  that  the  said  W.  G.  C.  was  to  execute  a  mortgage, 
or  deed  of  trust,  or  other  lien  on  the  stock,  as  aforesaid,  for  the 
purpose  of  securing  to  the  defendant  payment  of  the  said  large 
sum  of  money,  and  wilfully,  wrongfully,  deceitfully  and  frau- 
dulently withheld,  suppressed  and  concealed  from  the  plain- 
tiff, that  the  said  JV.  G.  C.  was  indebted  to  the  defendant  in  any 


Declarations  in  case.  689 

sum  of  money,  or  was  to  execute  any  mortgage,  deed  of  trust 
or  other  lien  whatever,  for  the  purpose  of  securing  any  sum  of 
money  to  the  defendant.  And  the  said  plaintiff"  saith,  that  the 
said  W.  G.  C,  then  and  there,  applied  to  the  said  plaintiff"  to 
deal  with  him,  in  the  way  of  the  said  plaintiff''s  trade  and  bu- 
siness, and  then  and  there,  and  at  divers  other  times,  applied  to 
the  said  plaintiff"  to  be  trusted  by  the  said  plaintiff",  for  divers 
goods,  wares  and  merchandize,  on  credit,  in  the  way  of  the  said 
trade  and  business ;  and  the  said  plaintiff"  carrying  on  his  busi- 
ness at  a  distance  from  the  said  W.  G.  C,  and  having  no  know- 
ledge of  his  circumstances,  except  that  derived  from  the  said 
representation  of  the  defendant,  supposing  that  the  information 
given  by  the  defendant  to  him  was  a  fair  representation  of  what 
the  said  defendant  knew  concerning  the  circumstances  of  the 
said  W.  G.  C;  that  the  said  defendant  had  stated  nothing 
which  was  false,  and  suppressed  nothing  which  he  ought  to 
have  disclosed,  and  believing  from  the  said  representation  that 
the  said  W.  G.  C.  was  a  trustworthy  person,  did,  in  conse- 
quence of  the  said  representation,  so  made  by  the  defendant, 
and  of  the  said  defendant's  withholding,  suppressing  and  con- 
cealing the  material  facts  herein  before,  in  this  count,  mention- 
ed, afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  and 
for  a  long  time,  to  wit,  on  divers  other  days  and  times  between 

the  day  last  aforesaid  and  the day  of ,  at  B.  in  the 

state  of  ilf.,  to  wit,  at  the  said  county  of  H.  deal  with  the  said 
W.  G.  C.  in  the  way  of  his  trade  and  business,  and  give  credit 
to  the  said  W.  G.  C,  and  sell  and  deliver  to  him  divers  other 
goods,  on  credit,  to  a  large  amount,  to  wit,  to  the  amount  of 
$2000,  to  wit,  at  the  said  county  of  H.  And  the  said  plaintiff" 
further  saith  that  the  said  W.  G.  C.  hath  not,  nor  hath  any  other 
person,  on  his  behalf,  paid  to  the  plaintiff"  the  said  last  mention- 
ed sum  of  money,  so  due  to  him  for  the  said  last  mentioned 
goods,  or  any  part  thereof;  but,  on  the  contrary  hereof,  since 
the  said  representation  so  made  by  the  defendant,  to  wit,  on  the 
18th  February  1834,  a  deed  was  made  by  the  said  W.  G.  C.  to 
one  J.  M.,  conveying  all  the  stock  in  trade  which  the  said  C. 
had  at  that  time,  in  trust,  for  the  purpose  of  securing  to  the  de- 
fendant the  payment  of  the  said  large  sum  of  money,  which 
was  due  from  the  said  W.  G.  C.  to  the  defendant,  and  after  the 
said  deed  was  made,  to  wit,  on  the  30th  of  July  1834,  the  said 
stock  in  trade  so  conveyed,  or  so  much  thereof  as  then  remained, 
was  sold,  and  the  proceeds  thereof  applied  to  pay,  or  towards  the 
payment  of,  the  said  large  sum  of  money  due  from  the  said  W. 
G.  C.  to  the  defendant,  and  the  said  W.  G.  C.  is  now  insolvent, 
and  the  plaintiff"  is  wholly  unable  to  obtain  from  him  payment 
of  the  said  sum  of  money,  so  due  to  him  for  the  said  last  men- 


590  Declarations  in  case. 

tioned  goods,  or  any  part  thereof,  to  wit,  at  the  said  county  of 
H. :  wherefore  the  said  plaintiff  saith  that  he  is  injured,  and 
hath  sustained  damage  to  the  amount  of  $2000,  and  therefore 
he  brings  suit  &c. 

15.  For  slander.     1  Rob.  Prac.  77. 

The  action  of  slander  only  lies  for  a  defamation  of  character  by  speak- 
ing, writing,  signs  or  pictures.  It  will  not  lie  for  an  injury  to  reputation, 
occasioned  by  the  mere  fact  of  an  illegal  search  for  stolen  goods.  Opi- 
nion of  court  in  Faulkner  v.  Anderson,  Gilm.  227. 

Where  the  words  are  not  charged  to  have  been  spoken  of,  or  con- 
cerning, the  plaintiff,  and  there  is  nothing  which  can,  by  fair  construc- 
tion, apply  them  to  the  plaintiff,  the  declaration  will  be  insufficient.  Cave 
V.  Shelor  and  wife,  2  Munf  193.  Donaghe  v.  Rankin,  4t  Munf  261.  Mil- 
ligan  V.  Thorn,  6  Wend.  412. 

A  declaration  laying  the  charge  in  the  alternative,  viz.  that  the  de- 
fendant spoke  certain  words,  "  or  words  of  the  same  import,"  is  good 
after  verdict.     Bell  v.  Bugg,  4  Munf  260. 

Words  will  be  understood  by  the  courts  in  the  sense  in  which  they 
were  understood  by  the  bystanders,  notwithstanding  there  may  be  a  pos- 
sible sense  in  which  they  may  be  esteemed  innocent.  Hoyle  v.  Young, 
1  Wash.  150.  Roane,  J.  in  Cave  v.  Shelor  and  wife,  2  Munf  194. 

Precedents  of  declarations  for  slander  are  given  in  2  Chitty's  plead- 
ing, p.  634  to  642.  The  edition  referred  to  is  the  5  Am,  from  4  Lond. 
edi.  printed  at  Philadelphia  in  1828. 

16.  For  j^oceeding  under  'process  of  law,  maliciously  and  without 

prohahle  cause. 

For  obtaining  an  attachment  against  property. — The  action  of 
trespass  vi  et  armis,  does  not  lie  against  a  party  obtaining  an  attachment 
against  another's  property.  Shaver  v.  White  S^  Dougherty,  6  Munf  110. 
In  such  case,  the  act  of  the  party  obtaining  the  attachment  is  unaccom- 
panied with  force,  and  he  is  "only  seeking  redress  of  an  injury  by  the 
regular  forms  of  law.  If  indeed  he  has  gone  out  of  his  proper  province, 
and  has  endeavoured  to  make  those  forms  subservient  to  the  malignity 
of  his  views ;  if  he  has  instituted  the  action  or  proceeding  with  malice 
and  loithout  probable  cause ;  then  he  is  responsible  for  his  conduct,  but 
not  in  this  form  of  action.  The  action  adapted  to  such  a  state  of  things 
is  a  special  action  on  the  case,  for  a  malicious  prosecution.  Opinion  of 
the  court  in  S.  C.     Olinger  v.  M'Chesncy,  7  Leigh  660. 

For  a  prosecution,  or  for  conspiring  or  advising  a  prosecution. 
In  Mowry  v.  Miller,  3  Leigh  561.  it  was  insisted  that  though  one  who 
institutes  a  prosecution  maliciously  and  without  probable  cause,  or  who 
conspires  with  another  to  institute  such  prosecution,  is  liable  to  an  ac- 
tion, in  the  one  case  for  a  conspiracy,  in  the  other  for  malicious  prose- 
cution, yet  to  advise  another  to  institute  such  prosecution  was  not  ac- 
tionable. That  was  an  action  on  the  case,  in  which  the  declaration  sub- 
stantially charged  that  the  defendant,  maliciously,  and  without  probable 


Declarations  in  case.  591 

cause,  consulted  with,  advised  and  procured  a  third  person,  falsely,  ma- 
liciously, and  without  probable  cause,  to  prosecute  the  plaintiff  for  felony. 
This  advice  and  procurement  were  held  to  be  actionable. 

Both  malice  and  want  of  probable  cause  must  be  averred. — 
The  decisions  have  settled  that  both  malice  and  the  want  of  probable 
cause  must  be  averred  in  the  declaration,  whether  the  action  be  for  suing 
out  an  attachment,  as  in  Young  v.  Gregorie  S^c.  3  Call  446.  and  Mar- 
shall V.  Bussard,  Gilm.  9. ;  or  for  a  malicious  prosecution,  as  in  Ellis 
V.  Thilman,  3  Call  3. ;  or  for  a  conspiracy,  as  in  Kirtley  v.  Deck  Sfc. 
2  Munf.  10. 

In  the  case  of  Mowry  v.  Miller,  before  cited,  it  was  objected,  that 
from  their  connexion  in  the  declaration,  the  words  without  probable  cause 
applied  only  to  the  act  of  Zirkel,  the  prosecutor,  not  to  the  advice  and 
procurement  of  the  defendant.  Tucker,  P.  after  saying  that  the  charges 
of  malice,  and  want  of  probable  cause,  were  reiterated,  and  stood  in 
connexion  with  both,  added,  that  according  to  his  view  the  objection 
could  not  avail,  if  true.  "  The  law,"  he  observes,  "  requires  the  plain- 
tiff in  this  action  to  set  forth  that  the  prosecution  was  loithout  probable 
cause.  But,  as  this  is  merely  because  no  man  can  maintain  an  action 
for  a  malicious  prosecution,  where  there  was  probable  cause,  it  is  ob- 
vious that  those  words  should  be  made  to  refer  to  the  state  of  fact,  as 
it  respects  the  person  prosecuted,  and  not  to  the  degree  of  knowledge  of 
that  fact  in  the  person  prosecuting." 

This  expression  of  opinion  not  being  called  for  in  the  particular  case, 
and  being  the  dictum  only  of  a  single  judge,  it  is  reasonable  to  suppose 
that  in  any  future  case  it  would  not  have  as  much  weight  as  the  decision 
of  the  court  of  common  pleas  in  Broad  v.  Ham,  5  Bingh.  N.  C.  722. 
35  Eng.  Com.  Law  Rep.  286.  r 

The  case  of  Broad  v.  Ham  was  an  action  for  charging  the  plaintiff 
with  a  felony,  and  procuring  his  committal  by  a  magistrate,  maliciously, 
and  without  reasonable  or  probable  cause.  At  the  trial,  it  appeared  that 
the  plaintiff,  who  was  apprenticed  to  the  defendant,  had  quitted  the  de- 
fendant's house  under  circumstances  which  had  a  suspicious  appearance. 
At  the  same  time  the  defendant  missed  a  check  for  £  10.,  which,  after 
a  search,  was  found  by  one  of  the  defendant's  shopmen,  in  the  plaintiff's 
box.  The  box,  however,  was  not  locked.  The  defendant  went  before 
a  magistrate,  and  upon  his  information  that  he  had  lost  a  check,  and  the 
deposition  of  the  witness  who  found  it,  the  plaintiff  was  committed.  At 
this  time  £  15.  was  due  to  the  defendant  as  part  of  the  premium  upon 
the  plaintiff's  articles  of  apprenticeship ;  and  when  the  charge  was  pre- 
ferred, the  plaintiff  demanded  the  £  15.  There  was  some  evidence  at 
the  trial  from  which  it  might  be  inferred  that  the  defendant  when  he 
went  before  the  magistrate,  did  not  believe  the  plaintiff  had  committed 
a  felony,  but  rather  preferred  the  charge  as  a  means  of  inducing  pay- 
ment of  the  £  15.  The  judge  told  the  jury  that  if  they  thought  the  de- 
fendant himself  believed  the  plaintiff  had  not  committed  a  felony,  that 
was  some  evidence  of  the  absence  of  probable  cause.  A  verdict  having 
been  found  for  the  plaintiff,  a  rule  nisi  was  obtained  to  set  it  aside  on 
the  ground  that  the  jury  had  been  misdirected  in  this  particular ;  and 
it  was  contended  in  support  of  the  rule,  that  if  the  plaintiff  had  com- 
mitted a  felony,  or  stood  in  such  circumstances  that  a  reasonable  man 


692  Declarations  in  case. 

would  believe  he  had  committed  one,  the  defendant's  belief  was  imma- 
terial with  a  view  to  the  question  whether  there  was  reasonable  and  pro- 
bable cause  for  the  charge.  But  the  court  of  common  pleas  held  the 
direction  to  be  right,  and  discharged  the  rule.  Tindal,  C.  J.  said,  "  I 
cannot  say  that  the  defendant  acted  on  probable  cause,  if  the  state  of 
facts  was  such  as  to  have  no  effect  on  his  mind."  Erskine,  J.  said,  "  It 
would  be  a  monstrous  proposition  that  a  party  who  did  not  believe  the 
guilt  of  the  accused  should  be  said  to  have  reasonable  and  probable 
cause  for  making  the  charge." 

Whether  it  must  be  alleged  that  the  proceeding  complained 
OF  is  determined. — In  Lenjis  v.  Farrel,  1  Str.  114.  a  case  for  a  mali- 
cious prosecution  of  an  indictment,  judgment  was  given  for  the  defen- 
dant on  demurrer,  because  it  was  not  shewn  how  the  indictment  was 
determined.  And  in  Young  v.  Gregorie  Sfc.  before  cited,  Carrington, 
J.  said,  the  declaration  would  have  been  bad  upon  demurrer  for  omitting 
to  shew  that  the  attachment  was  determined. 

That  the  common  action  for  a  malicious  arrest  or  malicious  prosecu- 
tion, without  probable  cause,  cannot  be  maintained  until  the  termina- 
tion of  the  previous  proceeding,  is  conceded  in  the  cases  of  Gi'ainger  v. 
Hill  Sfc.  4  Bingh.  N.  C.  212.  33  Eng.  Com.  Law  Rep.  328.  and  Hey- 
wood  V.  Collinge,  9  Ad.  &  E.  268.  36  Eng.  Com.  Law  Rep.  136.  But 
in  neither  of  these  cases  was  the  doctrine  considered  to  be  applicable. 

Grainger  v.  Hill  was  an  action  for  abusing  the  process  of  the  law  by 
applying  it  to  extort  property  from  the  plaintiff,  and  the  plaintiff's  re- 
medy was  considered  to  be  by  an  action  on  the  case,  applicable  to  such 
new  and  special  circumstances.  His  complaint  being  that  the  process 
of  the  law  had  been  abused,  to  effect  an  object  not  within  the  scope  of 
the  process,  it  was  deemed  immaterial  whether  the  suit  which  that  pro- 
cess commenced  had  been  determined  or  not,  or  whether  or  not  it  was 
founded  on  reasonable  and  probable  cause. 

Heywood  v.  Collinge  was  an  action  for  an  abuse  gf  the  process  of  the 
court  by  maliciously  arresting  and  detaining  the  plaintiff  a  second  time  for 
the  same  cause  of  action,  in  respect  of  which  he  had  been  duly  discharged 
out  of  custody  upon  the  first.  "  If,"  said  Coleridge,  J.  "  an  action  is  not 
sustainable  under  such  circumstances,  we  must  be  prepared  to  hold  that 
the  process  of  the  court  may  be  abused  by  a  plaintiff  for  purposes  how- 
ever wanton  and  malicious.  We  may  suppose  the  case  of  a  party  ha- 
rassing the  defendant  under  the  forms  of  law,  by  maliciously  suing  out 
three  writs  for  the  same  cause  on  the  same  day,  and  successively  arrest- 
ing the  defendant  on  all  three  of  them.  In  such  a  case,  the  principle 
of  the  law  allows  an  action,  although  in  form  it  may  have  some  novelty." 

Form  of  declaration  for  advising  and  inducing  a  malicious 
prosecution. — In  Mowry  v.  Miller,  3  Leigh  561.  the  defendant  demur- 
red to  the  declaration,  and  the  declaration  was  adjudged  good.  It  may 
therefore  be  referred  to  as  a  precedent.  In  the  report  of  the  case,  it  is 
given  verbatim. 

17.  For  criminal  conversation  vMh  plaintiff^ s  wife. 

Whether  action  lies  for  act  done  after  agreement  by  hus- 
band AND  wife  to  live  SEPARATELY. — The  gist  of  this  action  being 


Declarations  m  case.  693^ 

the  loss  of  the  comfort  and  society  of  the  plaintiff's  wife,  it  was  held 
that  the  action  could  not  be  supported  where  it  appeared  that  the  plain- 
tiff and  his  wife  had  agreed  to  live  separately,  and  there  was  no  direct 
proof  of  any  act  of  adultery  before  the  separation.  The  commission  by 
the  defendant  of  several  acts  of  adultery  after  the  separation,  was  consi- 
dered not  sufficient.      Weedon  v.  Timhrell,  5  T.  R.  357. 

In  a  more  recent  case,  {Chambers  v.  Caulfield,  6  East  244.)  lord  El- 
lenhorough  desired  that  it  might  be  argued  upon  the  general  point  whe- 
ther the  mere  fact  of  a  separation  between  husband  and  wife  by  deed  was 
such  an  absolute  renunciation  of  the  husband's  marital  rights,  as  pre- 
cluded him  from  maintaining  the  action,  saying  that  he  did  not  consider 
that  question  concluded  by  the  decision  in  Weedon  v.  Timhrell. 

However,  in  Chambers  v,  Caulfield,  the  deed  had  not  provided  for  any 
separation  without  the  approbation  of  trustees,  and  there  being  no  evi- 
dence to  shew  that  the  separation  was  with  their  consent,  the  court  was 
of  opinion  that  the  plaintiff's  right  to  recover  was  not  affected  by  the 
deed.  The  court  said  further,  that  if  the  wife  did  leave  her  husband 
with  such  approbation,  the  husband  had  not  in  this  case,  (as  he  was  hol- 
den  to  have  done  in  Weedon  v.  Timbrell,)  given  up  all  claim  to  be  de- 
rived from  her  comfort,  society  and  assistance ;  for  the  deed  had  provi- 
ded that  she  "  might  have  the  care  of  the  younger  children  of  the  mar- 
riage, and  visit  the  others,  more  especially  when  they  should  be  ill,  so  as 
to  require  the  attention  of  a  mother." 

For  that  the  said  A.  Ow  contriving,  and  wrongfully,  wick- 
edly and  unjustly  intending  to  injure  the  said  F.  L.,  and 
to  deprive  him  of  the  comfort,  fellowship,  society,  aid  and 
assistance  of  S.  L.  the  wife  of  him  the  said  F.  L.,  and  to 
alienate   and  destroy  her   affection   for   him    the   said   F.   L., 

heretofore,  to  wit,  on  the day  of in  the  year , 

and  at  divers  other  days  and  times  between  that  day  and  the 
day  of  commencing  this  suit,  at  the  county  aforesaid,  wrongful- 
ly, wickedly  and  unjustly  debauched  and  carnally  knew  the  said 
S.  L.,  then  and  there,  and  still  being  the  wife  of  him  the  said 
F.  L.,  and  thereby  the  affection  of  her  the  said  S.  L.  for  him  the 
jP.  L.  was,  then  and  there,  alienated  and  destroyed ;  and  also 
by  means  of  the  premises,  he  the  said  F.  L.  hath  thence,  hi- 
therto, wholly  lost  and  been  deprived  of  the  comfort,  fellowship, 
society,  aid  and  assistance  of  the  said  S.  L.  his  said  wife,  in  his 
domestic  affairs,  which  he  the  said  jP.  L.  during  all  that  time, 
ought  to  have  had,  and  otherwise  might,  and  would,  have  had, 
to  wit,  at  the  county  aforesaid.  Wherefore,  the  said  jP.  L.  says 
that  he  is  injured,  and  hath  sustained  damage  to  the  amount  of 
$  1000  ;  and  therefore  he  brings  suit  &c. 
75 


594  Declarations  in  case. 

18.  For  debauching  plaintiff  ^s  daughter. 

No  CRIMINAL  PROSECUTION  LIES. — In  Anderson's  case,  5  Rand.  627. 
the  defendant,  who  was  a  married  man,  was  indicted  for  this,  that  he  did 
entice,  inveigle,  take  and  carry  away  from  the  care  and  custody  of  her 
mother,  a  maiden,  of  the  age  of  sixteen  years  and  two  months,  and  did 
afterwards  carnally  know  and  prostitute  her.  And  the  question  was, 
whether  the  offence  was  a  misdemeanour  punishable  by  indictment  at 
the  common  law  ?  It  was  insisted  that  it  was  comprehended  within  the 
class  of  offences  contra  bonos  mores.  But  the  general  court  decided  that 
the  indictment  could  not  be  sustained.  See  also  the  case  of  Isaacs  and 
others,  5  Rand,  634. 

Remedy  by  action. — The  remedy  is  by  a  civil  action.  In  the  case 
of  Parker  v.  Elliott,  6  Munf  587.  and  Gilm.  33.  one  ground  of  the  de- 
murrer to  the  declaration  was,  that  the  action  should  have  been  trespass 
and  not  case,  but  the  court  decided  that  as  the  action  was  brought  merely 
for  debauching  the  plaintiff's  daughter,  the  injury  arising  from  which  was 
as  to  the  father  only  consequential,  he  might  elect  to  bring  an  action  on 
the  case  for  the  said  injury,  and  the  demurrer  was  therefore  overruled. 

Form  of  declaration. — The  following  precedent  is  copied  from  the 
declaration  in  Parker  v.  Elliott  : 

For  that  the  said  D.  P.  contriving,  and  wrongfully  and  unjust- 
ly intending  to  injure  the  said  P.  E.  and  to  deprive  him  of  the 
service  and  assistance  of  Polly  E.  the  daughter  and  servant  of 

him  the  said  Philip  E.,  heretofore,  to  wit,  on  the  day  of 

1816,  and  at  divers  other  days  and  times,  between  the 

day  aforesaid  and  the  day  of  commencing  this  suit,  at  the  county 
aforesaid,  debauched  and  carnally  knew  the  said  Polhj  E.,  then 
and  there,  and  from  thence  up  to  the  time  of  commencing  this 
suit,  being  the  daughter  and  servant  of  the  said  Philip  E.,  where- 
by the  said  Polly  E.  became  pregnant  and  sick  with  child,  and 
so  remained  and  continued  for  a  long  space  of  time,  to  wit,  for 
the  space  of  nine  months  then  next  following,  at  the  expiration 

whereof,  to  wit,  on  the day  of 1817,  at  the  county 

aforesaid,  she  the  said  Polly  E.  was  delivered  of  the  child  with 
which  she  was  so  pregnant,  as  aforesaid,  to  wit,  at  the  county 
aforesaid  :  By  means  of  which  said  several  premises,  the  said 
Polly  E.  for  a  long  space  of  time,  to  wit,  from  the  day  and  year 
first  above  mentioned  to  the  day  and  year  last  above  mentioned, 
and  for  the  space  of  one  month  thereafter,  became  and  was  una- 
ble to  do  or  perform  the  necessary  affairs  of  the  said  Philip  E. 
so  being  her  father  and  master  as  aforesaid  :  And  thereby,  he 
the  said  Philip  E.  lost  and  was  deprived,  during  all  the  time 
aforesaid,  of  the  services  of  his  said  daughter  and  servant,  to 
wit,  at  the  county  aforesaid. 

And  whereas,  also,  the  said  D.  P.  contriving,  and  unjustly 
and  wrongfully  intending  to  injure  the  said  Philip  E.,  and  to  de- 


Declaratioris  in  case.  596 

prive  him  of  the  service  and  assistance  of  Polly  E.,  the  daughter 

and  servant  of  him  the  said  Philip  E.,  to  wit,  on  the  -^ day 

of 1816,  at  the  county  aforesaid,  and  on   divers  other 

days  and  times  between  that  day  and  the  day  of  commencing 
this  suit,  debauched  and  carnally  knew  the  said  Polly  E.,  then 
and  there,  and  from  thence  for  a  long  space  of  time,  to  wit,  up 
to  the  commencement  of  this  suit,  being  the  daughter  and  ser- 
vant of  him  the  said  Philip  E.,  whereby  the  said  Polly  E.  became 
pregnant  and  sick  with  child,  and  so  remained  and  continued  for 
a  long  space  of  time,  to  wit,  for  the  space  of  nine  months  then 

next  following,  at  the  expiration  whereof,  to  wit,  on  the day 

of at  the  county  aforesaid,  she  the  said  Polly  E.  was  de- 
livered of  the  child  with  which  she  was  so  pregnant  as  afore- 
said, to  wit,  at  the  county  aforesaid  :  By  means  of  which  said 
several  premises,  she  the  said  Polly  E.  for  a  long  space  of  time, 
to  wit,  from  the  day  and  year  first  above  mentioned,  hitherto 
became,  and  was,  unable  to  do  or  perform  the  necessary  affairs 
and  business  of  the  said  Philip  E.,  so  being  her  father  and  mas- 
ter as  aforesaid  :  And  thereby  he  the  said  Philip  E.  during  all 
that  time,  lost  and  was  deprived  of  the  service  of  his  said  daugh- 
ter and  servant,  to  wit,  at  the  county  aforesaid,  and  also  by 
means  of  the  said  several  premises,  he  the  said  Philip  E.  was 
forced  and  obliged  to,  and  did  necessarily  pay,  lay  out  and  ex- 
pend, divers  sums  of  money,  amounting  in  the  whole  to  a  large 
sum  of  money,  to  wit,  the  sum  of  fifty  dollars,  in  and  about  the 
nursing  and  taking  care  of  the  said  Polly  E.,  his  said  daughter 
and  servant,  and  in  and  about  the  delivery  of  the  said  child,  to 
wit,  at  the  county  aforesaid,  to  the  damage  of  the  said  Philip  E. 
two  thousand  dollars  ;  and  therefore  he  brings  suit  &c. 


INDEX. 


ABATEMENT. 

1.  IVhere  action  is  abated  without  plea. 
Entry  of  abatement  by  the  return 

of  no  inhabitant,  10 

Suggestion  of  plaintiff's  death,       34 
Discontinuance  of  suit  at  second 
term,  after  such  suggestion,  34 

Where  one  of  two  plaintiffs  dies, 

39.377 
Where   one  of  two   defendants 
dies,  39 

Where  it  is  ascertained  when  too 
late  to  plead  in  abatement,  that 
demandant  was  dead  at  the  time 
suit  was  brought,  187 

2.  Concerning  pleas  in  abatement.,  16  to  20 
What  facts  must  be  stated  in  a 

plea  to  the  person  of  the  plain- 
tiff, that  he  is  an  alien  enemy,       16 

What  must  be  stated  in  a  plea 
that  the  plaintiffs,  suing  as  hus- 
band and  wife,  never  were  mar- 
ried, 17 

Under  what  circumstances  plea 
that  plaintiff  is  a  fictitious  per- 
son, will  be  sustained,  17 

Plea  to  the  person  of  the  plain- 
tiff, that  he  was  dead  when  the 
writ  issued,  18.  186 

Plea  to  the  person  of  the  defen- 
dant that  the  contract  was  made 
by  him  and  his  partner  jointly, 
and  not  by  the  defendant  sepa- 
rately, 18 

Flea  for  variance  between  the 
writ  and  declaration,  19 

Plea  by  a  corporation  for  intrin- 
sic matter,  19 

Plea  by  a  corporation  for  extrin- 
sic matter,  20 

Entry  of  plea,  21 

Demurrer  to  plea,  22 

Judgment  for  plaintiff  upon  de- 
murrer to  plea,  108 

Judgment  for  defendant  upon  de- 
murrer to  plea,  109 

Judgment  for  defendant  upon  de- 
murrer to  a  plea  pleaded  by  him 
to  particular  counts,  109 


Judgment  for  plaintiff  upon  de- 
murrer to  a  replication  to  a  plea,  109 

Another,  where  the  plea  was  bad, 
the  court  going  up  to  the  first         \ 
fault,  109 

Judgment  for  defendant  upon  de- 
murrer to  replication  to  plea,       109 

When  issue  on  plea  will  be  found 
against  defendant,  18 

Judgment  upon  verdict  found  for 
defendant,  148 

Plea  upon  attachment  against  ab- 
sconding debtor,  308 
3.  Where  after  judgment,  matter  in 
abatement  is  used. 

Writ  of  error  coram,  xobis  awar- 
ded, because  plaintiff  was  dead 
when  suit  was  brought ;  and  the 
fact  being  admitted,  judgment 
reversed  and  writ  quashed,  339 

Afler  reversal  in  appellate  court, 
action  abated  because  not  origi- 
nally maintainable  by  or  against 
a  personal  representative,  379 

ABSCONDING  DEBTOR. 
See  Attachment. 

ACCEPTOR. 

Nature  and  extent,  of  acceptor's 
undertaking,  444 

Whether  debt  lies  against  accep- 
tor of  a  bill  of  exchange,  443 

It  lies  against  acceptor  of  an  or- 
der, 444 

Precedent  of  a  declaration  in  debt 
by  payee  against  such  acceptor,  444 

ACCORD  AND  SATISFACTION. 

When  it  may  be  used  as  a  bar,    '77, 8 

ACCOUNT  STATED. 

Form  of  the  count  in  debt,  447 

Form  in  assumpsit,  551 

What  may  be  recovered  there- 
under, 553,  4 

ADMINISTRATOR. 

See  Executors  and  Administrators. 


598 


INDEX. 


AFFIDAVIT. 

To  obtain  bail,  3.  4 

To  obtain  a  commission  to  take 

a  deposition,  45 

To  obtain  a  discovery,  56,  7 

Denying  execution  of  instru- 
ment, 59. 61 
Denying  existence  of  partnership,  60 
To  obtain  a  warrant  of  distress,  151 
By  a  poor  debtor  who  wishes  a 
portion  of  his  property  exempted,  212 
By  a  sheriff  to  obtain  an  escape 

warrant,  224 

In  particular  causes,  such  as  eject- 
ment, unlawful  entry  or  detainer, 
attachment,  prohibition  and  ha- 
beas corpus,  see  those  titles. 

AFFIRMANCE  OF  JUDGMENT. 

See  titles  Appeal,  Supersedeas  audi 
Writ  of  Error. 

AGENT. 

When  action  will  not  lie  against 
an  agent,  564 


ALMS  CAPMS: 

Award  of  alias  capias, 
Form  of  the  writ, 

ALIEN  ENEMY. 


What  facts  must  be  stated  in  a 
plea  that  the  plaintiff  is  an  alien 
enemy,  16 

AMENDMENT. 

1.  Correction  of  clerk' s  mistake. 
Order  of  court  correcting  mis- 
take in  proceedings  in  the  office 
during  preceding  vacation,  333 

2.  Amendment  of  pleadings. 
Leave  granted  to  amend  declara- 
tion, 93 

Leave  granted  to  amend  plea  af- 
ter argument  of  demurrer  there- 
to, 94 

Leave  granted  to  amend  replica- 
tion after  argument  of  demur- 
rer thereto,  94 

After  opinion  in  favour  of  a  party 
upon  his  demurrer,  joinder  with- 
drawn and  leave  to  amend,  108 

3.  Amendment  of  record  in  same  court. 
Notice  of  application  to  judge  in 

vacation  to  amend  judgment,      333 
Amendment  of  judgment  by  judge 
in  vacation,  334 


Notice  of  application  to  court  to 
amend  judgment,  335 

Judgment  amended  by  the  court,  335 
4.  Amendment  of  record  in  appellate 
court. 

Affirmance  of  judgment  after 
amending  the  transcript  of  the 
record,  378 

APPEAL. 

Judgment  upon  appeal  from  de- 
cision of  a  justice  as  to  the  title 
of  property  taken  under  an  exe- 
cution upon  a  warrant,  105 

Judgment  upon  appeal  from  judg- 
ment of  a  justice  for  money,  af- 
firming same,  104 

Fi.  fa.  thereupon,  211 


APPEAL  BOND. 

Under  what  circumstances  there 
may  be  a  recovery  on  appeal 
bond, 


473 


APPEARANCE. 


Entry  of  defendant's  appearance, 

20.  21.  25 

ARBITRATION  AND  AWARD. 

1.  In  pending  suit. 

Order  referring  to  arbitrators  a 
pending  suit,  103 

Order  of  reference  set  aside,  103 

Another  order  of  reference  in  a 
pending  suit,  104 

Subpasna  for  witness  to  attend  ar- 
bitrators, 51 

Award  returned  and  judgment 
pursuant  thereto,  104 

2.  Where  submission  is  made  a  rule 

of  court. 
Submission  of  the  controversy,     102 
Affidavit  of  the  execution  of  the 
submission,  102 

Rule  of  court  upon  submission,    103 
Return  of  award  made  in  pursu- 
ance of  such  submission,  103 
Award  entered  up  as  the  judg- 
ment of  the  court,  103 

3.  Action  for  not  performing  award. 
What  must  be  comprehended  in 

award,  496 

To  whom  payment  may  be  awar- 
ded, 496 

By  whom  payment  may  be  direc- 
ted, 496 

What  award  is  considered  mu- 
tual and  final,  497 

Who  may  sue  for  breach  of  co- 
venant of  submission, '  498 


INDEX. 


599 


Profert  to  be  made  of  submission 
and  award,  498 

How  much  of  award  must  be  set 
forth,  498 

ARREST  OF  JUDGMENT, 

Where  verdict  is  rendered  as  up- 
on an  issue,  when  no  plea  has 
been  filed,  135 

Cases  in  which  motion  in  arrest 
of  judgment  was  overruled,         136 

ASSAULT  AND  BATTERY. 
See  Trespass. 

ASSENT  TO  LEGACY. 
See  Legacy,  and  561 

ASSETS. 

Concerning  pleas  by  an  executor 
or  administrator  in  respect  to  the 
assets,  80 

Plea  of  no  assets,  80 

Plea  of  no  assets  prcBter,  80 

Plea  of  debts  of  superior  dignity 
to  a  greater  amount  than  the  aa- 
flets,  81, 2 

Plea  that  distribution  has  been 
made  and  refunding  bonds  ta- 
ken, 83 

Judgments  in  action  against  exe- 
cutors and  administrators, 

100.  144, 5 

Special  agreement  to  prevent  de- 
fendant being  charged  beyond 
the  assets,  144 

ASSIGNMENT. 

1.  Of  action  in  name  of  obligee  for 

assignee  against  obligor. 
Though    debt    may    have    been 
paid,  plaintiff  will  recover  if  as- 
signee was  induced  by  obligor 
to  take  the  .assignment,  421 

2.  Of  action  in  name   of  assignee 

against  obligor. 

How  assignment  must  be  set 
forth,  418 

Whether  profert  of  assignment 
should  be  made,  418 

What  variance  between  declara- 
tion and  instrument  is  imma- 
terial, 418 

Consideration  of  assignment  need 
not  be  proved,  418 

Forms  of  declarations,  418.  420 

3.  Right   and    remedy  of  assignee 

against  assigyior,  515  to  520 

How  far  assignor  is  responsible,     515 
Jlssumpsit  is  the  proper  remedy,   515 


Due  diligence  must  appear,  and 
geaerally  there  should  be  a  suit 
against  obligor,  515 

Where  failure  to  sue  does  no  in- 
jury to  assignor,  suit  may  be 
dispensed  with,  as  where  maker 
is  not  liable,  515 

Or  where  the  maker  is  insolvent,  516 

Whether  non-residence  of  obli- 
gor is  a  sufficient  excuse  for  not 
suing  him,  516 

Where  no  excuse  for  not  suing, 
suit  must  be  diligently  prosecu- 
ted, 516 

The  result  of  the  suit  must  be 
shewn,  516 

If  judgment  against  maker  be 
injoined,  assignor  must  not  be 
sued  while  injunction  is  pend- 
ing, 516 

If  maker  be  taken  under  a  ca.  sa. 
assignor  must  not  be  sued, while 
he  continues  charged  in  execu- 
tion, 517 

But  without  issuing  ca.  sa.  suit 
may  be  brought  upon  return  of 
nulla  bona,  517 

Sheriff's  return  cannot  be  con- 
troverted, 517 

Declaration  must  aver  a  conside- 
ration for  the  assignment,  519 

What  will  sustain  the  averment,    519 

Extent  of  assignor's  liability,        519 

Count  against  assignor  setting 
forth  return  of  Tuulla  bona.,  517 

Count  against  assignor  alleging 
notorious  insolvency,  519 

Afler  judgment  by  second  as- 
signee against  obligor,  and  re- 
turn of  nulla  bona,  count  by 
first  assignee  against  his  as- 
signor, 520 

jSSSUMPSIT. 

1.  Of  the  action  of  assumpsit. 

Not  to  be  brought  on  sealed  in- 
strument, 498 

May  now  be  brought  against  a 
corporation,  499 

Or  by  a  corporation,  499 

2.  Rules  applicable  to  declarations 

upon  promises. 

Time  of  promise  to  be  stated,         500 
Consideration  to  be  set  out  to  sup- 
port promise,  501 
Promise  to  be  stated,  502 
Breach  of  promise  to  be  alleged,  502 

3.  Precedents  of  declarations  in  par- 

ticular cases  of  assumpsit. 
These  precedents  and  the  deci- 
sions   relating  thereto    extend 
from  503  to  554 


600 


INDEX. 


The  cases  are  enumerated  in  the 
table  of  contents  prefixed  to  this 
volume.     See  xlviii.  to  1. 

4.  Verdict. 

On  writ  of  enquiry,  124 

On  plea  of  non-assumpsit,      125. 130 
For  plaintiff  upon  other  issues, 

129. 130 
For  sterling  money,  assessing  da- 
mages in  current  money,  131 

5.  Judgment. 

Upon  confession,  98 

Upon  verdict  for  plaintiff,  143 

For  plaintiff,  where  verdict  in  cir- 
cuit court  for  less  than  $  50,    146, 7 
For  defendant,  where  verdict  in 
circuit  court  for  less  than  $  50,    147 

6.  Execution. 

Writs  of  fieri  facias^  208 

ATTACHMENT. 

1.  Against  defendant  in  common  per- 

sonal action. 
Awarded  to  force  appearance,         11 
Form  of  the  process,  11 

Return  thereon,  12 

2.  Against  an  absconding  debtor, 

where  debt  has  become  payable. 

Bond  taken  where  attachment  is 
granted  for  a  debtexceeding  $10,  302 

Process  of  attacliment  in  such 
case,  303 

How  bond  and  attachment  are 
made  out  where  the  plaintiffs 
are  partners,  302,  3 

When  necessary  to  issue  and 
serve  attachment  on  Sunday, 
what  must  be  stated,  303 

Bond  to  officer  serving  attach- 
ment for  purpose  of  replevying 
same,  304 

Officer's  return  when  such  bond 
is  given,  304 

Return  where  no  such  bond  is 
given,  304 

Attachment  dismissed,  because 
issued  without  a  proper  bond 
being  taken,  305 

Garnishee  sworn;  judgment 
against  defendant;  and  then 
judgment  against  garnishee,         305 

Plaintiff  alleging  that  garnishee 
has  not  discovered  truly,  jury 
impannelled,  and  afler  their  ver- 
dict, judgment  against  defendant 
and  then  against  garnishee,  306 

Judgment  against  a  garnishee 
who  owes  more  than  is  sufficient 
to  satisfy  demand  against  ab- 
sconding debtor,  306 

Judgment  against  absconding 
debtor  who  neither  replevies 


nor  makes  defence,  and  order 

for  sale  of  attached  effects,  306 

Order  where  attached  effects  are 
to  be  sold  to  satisfy,  first,  a  prior 
judgment,  and  then  a  subsequent 
one,  307 

Order,  before  attachment  is  deci- 
ded, for  the  sale  of  property  lia- 
ble to  perish,  or  to  become  im- 
paired in  value,  or  which  it  may 
be  expensive  to  keep,  307 

Attachment  replevied  by  putting 
in  bail  in  court,  308 

Defendant  admitted  to  make  de- 
fence without  replevying  the 
property  attached,  308 

Plea  in  abatement,  308 

Plea  by  claimant  of  the  goods  at- 
tached, 309 

Replication  to  plea  of  claimant,    309 

Entry  of  claimant's  plea,  and  re- 
plication thereto ;  verdict  for 
claimant;  and  judgment  there- 
upon, 309 

Verdict,  on  claimant's  plea,  in  fa- 
vour of  the  attaching  creditor, 
and  judgment  thereupon,  310 

3.  WJtere  debt  is  under  $  20  and  debtor 

removes  his  effects. 
Affidavit  to  obtain  attachment,      310 
Process  of  attachment,  .  310 

4.  Where  debtor  removes  before  debt 

is  payable. 

Affidavit  to  obtain  attachment,      311 

Bond  upon  obtaining  attachment 
for  claim  of  $  10  or  upwards,      311 

Process  of  attachment  in  such 
case,  312 

Another,  where  the  creditor  is  a 
mercantile  firm,  312 

Bond  given  by  the  debtor  for  the 
payment  of  the  debt  when  it 
shall  become  due,  313 

Debtor  not  giving  bond  for  pay- 
ment of  debt  when  it  shall  be- 
come due,  j udgment  against  him 
and  order  for  sale  of  attached  ef- 
fects, 313 

Judgment  against  debtor  for 
amount  to  become  due,  and  then 
judgment  against  garnishee,         314 

5.  Where  tenant  removes  his  effects 

before  rent  is  payable. 

Affidavit  to  obtain  attachment 
where  tenant  will  remove  his  ef- 
fects, 314 

Affidavit  where  the  tenant  has 
actually  removed  his  effects  be- 
fore the  rent  has  become  due,      315 

Attachment  where  tenant  will  re- 
move or  has  removed  his  effects 
before  rent  becomes  payable,        315 

Order  quashing  attachment,  315 


INDEX. 


601 


Recognizance  for  the  payment  of 
rent  at  the  time  it  will  become 
due,  316 

Attachment  having  issued  irre- 
gularly, order  quashing  same 
and  the  recognizance  taken  un- 
der it,  316 

Tenant  not  entering  into  recog- 
nizance for  payment  of  the 
rent,  goods  attached  ordered  to 
be  sold,  317 

Right  to  sue  out  the  attachment 
contested,  and  judgment  enter- 
ed for  the  tenant,  317 

Where  the  rent  is  reserved  in  any 
other  thing  than  money,  value 
ascertained  in  money,  317 

6.  Against  a  vessel,  to  meet  master's 

liability  in  a  suit  against  him, 
for  carrying  off  a  slave. 

Affidavit  to  obtain  attachment,      318 

Bond  given  when  attachment  is- 
sues, 318 

Process  of  attachment,  318 

Bond  given  to  the  officer  having 
possession  of  the  vessel  attach- 
ed, to  get  the  same  restored  to 
the  master,  319 

Return  by  the  officer,  after 
levying  attachment  upon  ves- 
sel, 319 

Verdict  and  judgment  in  suit  in- 
stituted for  the  recovery  of  the 
penalty  imposed  for  carrying  a 
slave  out  of  the  county,  320 

After  judgment  for  plaintiff  in 
suit  against  the  master  of  a 
vessel,  order,  in  the  attachment 
case,  to  sell  the  vessel  in  satis- 
faction of  the  judgment,  320 

7.  Of  the  remedy  for  issuing  an  at- 

tachment against  the  property 
of  the  plaintiff,  as  an  abscond- 
ing debtor,  maliciously  and 
without  probable  cause,    590  to  592 

8.  Of  the  remedy  on   the   attach- 

ment bond,  476 

9.  Of  the  process  of  attachment  in 

the  action  of  waste,  see  title 
Waste,  and  201 

10.  Of  the  attachment  for  failing  to 
obey  a  subpana,  see  titles  Sub- 
pama.  Witness,  and  54, 5 

ATTENDANCE  OF  WITNESS. 

See  Witness,  and  55 

ATTORNEY. 

Notice  of  motion  by  client 
against  attorney  for  money  re- 
ceived, 286 

76 


AUTHENTICATION. 

What  entitles  record  of  one  state 
to  be  admitted  as  evidence  in 
another,  117 

What  entitles  a  power  of  attor- 
ney or  deed  from  another  state 
to  be  received  as  evidence  in 
Virginia,  118 

AVOWRY. 

See  Replevin. 


B 


BAIL. 

1.  Affidavit    to   obtain    bail,   with 

justice's  endorsement  directing 

it,  3,4 

2.  Bail  being  given  in  term  time, 

order     discharging     defendant 
from  custody,  8 

3.  JVhere  bail  is  required  after  suit 

brought. 

Under  what  circumstances  de- 
fendant may  be  ruled  to  give 
bail,  28 

Order  ruling  defendant  to  give 
bail,  28 

4.  Of  exceptions  to   bail   and  pro- 

ceedings thereupon. 

Exceptions  to  bail  taken  by  an 
officer,  28 

Entry  of  such  exceptions,  23 

Decision  upon  such  exceptions,      29 

After  officer  is  bound  as  bail, 
rule  upon  defendant  to  give 
other  bail,  29 

Entry  of  exceptions  to  bail  ta- 
ken by  any  other  than  an  offi- 
cer, 29 

Exceptions  to  bail  taken  by  offi- 
cer, for  insufficiency  happen- 
ing after  recognizance  taken,         29 

Decision  upon  exceptions,  in  ei- 
ther of  two  last  cases,  29 

5.  Attachment  replevied  by  putting 

in  bail,  in  court,  308 

6.  Surrender  by  bail  and  proceed- 

ings thereupon. 

Bail  piece,  30 

Entry  of  surrender  in  court  in 
pending  suit,  30 

Defendant  discharged  on  giving 
other  good  bail,  30 

Entry  of  surrender  in  court  after 
judgment,  30 

Entry  of  defendant's  surrender 
of  himself  in  court,  after  judg- 
ment, 31 


602 


INDEX. 


Receipt  for  defendant  when  sur- 
render is  not  in  court,  31 
Notice  of  surrender  out  of  court,  31 
Notice  of  motion  of  exoneretUT,       32 
Exoneretur  entered,  32 
Writing  charging  defendant  in 
execution,  33 
Consent  by  creditor  to  discharge 
of  principal,  33 

7.  Scire  facias  upon  recognizance  of 

bail. 
Where  taken  by  a  sheriff,  255 

Where  taken  by  a  judge  or  jus- 
tice, 256 
Where  given  in  court,  257 
In  detinue  where  recognizance 
is  taken  by  a  sheriff,  257 
In  action  for  debt  or  damages, 
against  executor  or  administra- 
tor of  bail,  258 

8.  Scire  facias  against  an  officer. 
Where  he  has  discharged  defen- 
dant from  custody  without  ta- 
king bail  or  without  returning 
recognizance,  259 

Where  bail  taken  by  an  officer  is 
adjudged  insufficient  and  scire 
facias  is  against  bail  and  officer 
as  joint  cognizors,  259 

9.  Judgment  against  bail. 

Award  of  execution  on  scire  fa- 
cias against  bail  in  debt,  264 

Award  of  execution  on  scire  fa- 
cias against  bail  in  detinue,  264 

Bail  surrendering  principal  after 
scire  facias,  judgment  against 
him  for  the  costs,  268 

10.  Execution  against  bail. 

Fieri  facias  after  award  of  exe- 
cution upon  recognizance  of 
bail  in  action  for  debt  or  dama- 
ges, 272 

Execution  after  award  thereof 
upon  recognizance  of  bail  in  de- 
tinue, 273 

BAILMENT. 

Case  in  which  wheat  was  the 
subject  of  bailment  for  the  pur- 
pose of  being  converted  into 
flour  for  the  use  of  the  bailor,     521 

BANK. 

Summons  against  a  bank  in  a 
suit  instituted  in  a  county 
where  a  branch  is  established,       5 

BANK  NOTES. 

When  debt  cannot  be  maintain- 
ed on  a  promissory  note,  paya- 


able  in  bank  notes. 


509 


Declaration  in  assumpsit  on  such 
a  note,  509, 510 

BASTARD  CHILD. 

Where  complaint  against  one  as 
father  of  bastard,  321 

Examination  of  mother  on  oath,   321 

Warrant  to  apprehend  the  father,  321 

Recognizance  of  father  to  appear 
at  next  court,  322 

Warrant  for  commitment  to  jail, 
in  case  no  recognizance  be  gi- 
ven to  appear  at  court,  323 

Default  in  not  appearing  at  court 
recorded,  and  scire  facias  awar- 
ded upon  recognizance,  324 

Case  examined  into  by  the  court 
and  judgment  given  against  the 
father,  324 

Recognizance  required  by  the 
court  not  being  given,  order 
committing  the  father  to  jail,       326 

Entry  of  the  recognizance  when 
given  in  court,  326 

Notice  of  motion  against  the  fa- 
ther and  his  sureties,  for  not 
paying  the  money  charged  up- 
on him,  326 

BILL  OF  EXCEPTIONS. 

By  defendant  to  opinion  of  cir- 
cuit court  admitting  note  as 
evidence  which  he  had  ob- 
jected to  on  the  ground  of  va- 
riance, 119 

By  plaintiff  to  opinion  of  coun- 
ty court  admitting  evidence'  of- 
fered by  defendant,  119 

By  defendant  to  opinion  refus- 
ing instruction  asked  for  by 
him,  120 

Entry  of  bill  of  exceptions,  120 

Motion  for  new  trial  being  over- 
ruled, opinion  of  court  except- 
ed to,  135 

Motion  for  new  trial  being 
granted,  opinion  of  court  ex- 
cepted to,  135 

Transcript  of  the  record  of  an 
action,  wherein  an  issue  of  fact 
was  joined,  opinion  at  the  trial 
excepted  to,  and  judgment  ren- 
dered upon  a  verdict,  364 

Concerning  exceptions  upon  mo- 
tions, or  in  cases  of  unlawful 
entry  or  detainer,  see  those  ti- 
tles. 

Concerning  the  remedy  where 
the  bill  of  exceptions  is  not 
sealed,  see  title  Mandamus,  and 

343, 4,  5 


INDEX. 


603 


BILLS  OF  EXCHANGE. 

1.  How    drawn,   accepted    or    en- 

dorsed, 421 

2.  Of  the  consideration,  423,  4,  5 

3.  Distinction  between  foreign  and 

inland  bills,  425 

4.  Of  the  acceptance,  refusal  to  ac- 

cept, dishonour  thereby  and  no- 
tice thereof. 

Whether  presentment  for  accep- 
tance is  necessary,  426 

If  acceptance  be  refused,  notice 
of  dishonour  necessary,  426 

In  case  of  foreign  bill,  protest 
and  notice  both  necessary,  426 

By  whom  presentment  for  ac- 
ceptance may  be  made,  426 

To  whom  presentment  for  ac- 
ceptance must  be  made,  427 

At  what  time  protest  for  non-ac- 
ceptance must  be  made,  427 

5.  Rights  of  holder  upon  refusal  to 

accept. 
Upon  refusal  to  accept,  right  to 

sue  drawer  or  endorser,  427 

Drawee   liable   also,   if  he   had 

promised  to  accept,  427 

6.  Demand  of  payment,  dishonour 

in  not  paying  and  notice  thereof. 

Demand  at  place  of  payment 
not  necessary  to  charge  accep- 
tor of  bill  or  maker  of  note,         428 

But  necessary  to  charge  endor- 
ser, 428 

When  demand  must  be  made,       428 

Protest  of  foreign  bill,  evidence 
of  dishonour,  430 

Due  notice  of  dishonour  neces- 
sary to  charge  endorser  of  note 
or  drawer  or  endorser  of  a 
bill,  431 

How    soon    notice    is    to    be 
given,  431 

In  what  terms  the  notice  is  to  be 
expressed,  433 

7.  When  proof  of  notice  is  dispensed 

with  and  when  not. 

Drawer  of  bill,  having  no  effects 
in  drawee's  hands,  not  dis- 
charged by  failure  to  make  pre- 
sentment or  give  notice,  435 

Nor  can  objection  of  want  of  no- 
tice be  made  by  endorser  who 
deceives  holder,  by  representing 
bill  will  be  accepted  when  he 
knows  it  will  not,  435 

But  mere  knowledge  that  bill 
will  not  be  paid  does  not  dis- 
pense with  notice,  436 

What  acknowledgment  is  suffi- 
cient to  dispense  with  proof  of 
notice,  436 


441 


441 


8.  Of  the  form  of  action. 
Whether   debt   lies   against  the 

drawer  of  a  bill,  independently 
of  the  statute,  443 

Whether  it  lies  against  the  ac- 
ceptor of  a  bill,  443, 4 

9.  Of  the  manner  of  declaring. 
Whether  in  action  against  en- 
dorser of  foreign   bill,  protest 
and  notice  must  be  set  forth, 

10.  Precedents  of  declarations  in  debt. 
Under   the    statute   giving  debt 

jointly  against  drawer  and  en- 
dorser of  a  foreign  bill,  pro- 
tested for  non-acceptance  and 
non-payment. 
Against  drawer  and  endorser  of 
a  note,  upon  the  footing  of  a 
foreign  bill,  except  as  to  dama- 
ges, 441 

11.  Precedents  of  declarations  in  as- 

sumpsit. 

Against  acceptor  by  drawer,  be- 
ing also  payee,  503 

Against  acceptor  by  drawer,  not 
being  payee,  503 

Against  acceptor  by  payee,  not 
being  drawer,  503 

Against  acceptor  by  endorsee,  503,  4 

Against  drawer  by  payee,  on 
non-acceptance,  504 

Against  drawer  by  endorsee,  on 
non-acceptance. 

Against  first  endorser  by  an  en- 
dorsee, on  non-acceptance. 

Against  second  or  third  endorser 
by  his  endorsee,  on  non-accep- 
tance. 

Against  drawer  or  endorser, 
where  action  is  brought  after 
expiration  of  time  for  payment,  505 

Against  drawer  or  endorser  of 
bill  protested  for  non-accep- 
tance or  non-payment,  where 
damages  are  claimed  under  the 
Virginia  statute. 

Against  drawer  by  an  acceptor, 
who  accepted  for  accommoda- 
tion of  drawer. 

Against  acceptor  of  a  foreign  bill,  508 

12.  Whether  at  trial  of  action  on  se- 

cond of  a  set  of  bills,  first  must 
be  produced, 

13.  Of  the  judgment. 
Judgment  for  plaintiff,  in  debt  on 

a  protested  foreign  bill. 
Judgment  on  foreign  bill,  where 
it  is  given  for  a  debt  due  in  cur- 
rent money,  or  for  current  mo- 
ney advanced  and  paid,  and  the 
sum  in  current  money  that  was 
paid  or  allowed  is  not  expressed 
in  the  bill, 


504 
505 


505 


507 


508 


441 


140 


140 


604 


INDEX. 


BOND. 

Declaration  in  debt  on  two  bonds,  412 
Declarations  in  debt  on  joint 
bonds,  413^  14 

Declarationa  in  debt  on  bonds 
by   and   against  representa- 
tives, 414  to  418 
Verdict  for  plaintiff  in  debt  up- 
on a  penal  obligation,  128 
Judgment  thereon,                           140 
Verdict   assessing  damages  for 
detention,  where  principal  and 
interest  exceed  the  penalty,          128 
Judgment  thereon,                           141 
Judgment  for  plaintiff  in  debt  on 
penal  obligation  for  sterling  mo- 
ney,                                                 141 

BOUNDS. 

Order  for  marking  and  laying 
out  the  bounds  and  rules  of 
the  prison,  226 

Bounds  and  rules  of  the  prison 
adopted,  226 

BOUNDS  BOND. 

Form  of  prison  bounds  bond,        227 

Warrant  to  take  person  who  fail- 
ed to  render  his  body  to  prison, 
according  to  condition  of  bond,  228 

Sheriff's  assignment  of  bond  to 
creditor,  228 

In  action  on  bond,  how  breach 
of  condition  must  be  assign- 
ed, 472,  3 

Precedent  of  a  declaration  in 
such  action,  471 

Oyer  prayed,  and  plea  of  condi- 
tions performed,  75 

BREACH  OF  THE  PEACE. 

Scire  facias  on  recognizance  to 
ieep  the  peace,  260 


€  API  AS  AD  RESPOMDEJVDUM. 

Attorney's  memorandum  for  the 
capias,  1 

Form  of  the  capias,  3 

Return  of  capias,  where  it  is  ex- 
ecuted and  the  bail  required  is 
not  given,  7 

Return  where  bail  is  given  be- 
fore the  return  day  is  past,  8 

Return  where  bail  is  not  required 
and  process  is  executed,  9 

CAPIAS  AD  SATISFACIENDUM. 
a.  Form  of  the  writ. 

When  returnable  to  court,  222 


When  returnable  to  rules,  223 

After  return  of  no  effects  on  ex- 
ecution- issued  by  a  justice,  223 

2.  Endorsement  by  creditor. 
Where  execution  is  delivered  to 

sheriff  of  any  other  county 
than  that  in  which  creditor  re- 
sides, 223 

3.  Proceedings  after  service  of 

ca.  sa. 
Notice  from  jailor  to  creditor,  or 
his  agent,  of  debtor's  imprison- 
ment, 223 
Return  where  defendant  is  arrest- 
ed and  committed  to  jail,              224 
Return  where  debtor  discharges 

his  body  by  paying  the  money,    226 
Bond   for   forthcoming    of   pro- 
perty tendered  in  discharge  of 
body,  225 

Return  where  property  is  so  ten- 
dered, 226 
Return   whexe    debtor   was  dis- 
charged by  tendering  property 
which  proved  to  be  under  in- 
cumbrance,                                     235 
Endorsement  on  new  execution 
to  shew  that  property  had  been 
tendered  under  a  ca.  sa.  which 
was  incumbered,                             235 
Return  where   debtor   is    dis- 
charged  upon   obtaining   an 
injunction,                                        228 
Return  where  prisoner  is  admit- 
to  the  bounds,                                  227 
Concerning  the  bounds  bond,  and 
the  breach  of  the  condition,  see 
title  Bounds  Bond;   and    con- 
cerning escape  from  prison  or 
bounds,  see  title  Escape. 
Concerning    the    proceedings, 
where     defendant    takes    the 
oath  of  an   insolvent  debtor, 
see  title  Insolvent. 

CASE. 

1.  Distinction  between  trespass  and 

case,  554 

2.  Precedents  of  declarations  in 

special  actions  on  the  case. 

These  precedents  and  tbe  deci- 
cisions  relating  thereto,  extend 
from       .  564  to  595 

The  particular  cases  are  enume- 
rated in  the  table  of  contents 
prefixed  to  this  volume.  See 
li.  and  lii. 

3.  Verdict. 

On  writ  of  enquiry,  124 

On  plea  of  not  guilty,  125 

On  any  other  issue,  131 

4.  Judgment. 

Upon  confession,  99 


INDEX. 


605 


Upon  verdict  for  plaintiff,  143 

When  the  jury  find  under  $6.66 
cents,  143, 4 

5.  Execution. 

Writs  of  fieri  facias,  208 

CASE  AGREED. 

Case  agreed  in  lieu  of  a  special 

verdict,  133 

Case  agreed  set  aside,  133 

Judgment  upon  case  agreed,  150 

CjiVE^T. 

Summons  issued  on  receiving  a 
certified  copy  of  a  caveat,  168 

Summons  not  being  executed, 
caveat  dismissed  with  costs,  168 

New  summons  awarded  on  ca- 
veat,  1 68 

Oath  of  jury  on  a  caveat,  169 

Facts  found  upon  a  caveat,  169 

Upon  facts  found  on  a  caveat, 
judgment  for  defendant,  169 

Upon  facts  found  on  a  caveat, 
judgment  for  plaintiff",  169 

Upon  facts  found  on  a  caveat, 
judgment  for  defendant,  with- 
out prejudice,  169 

On  a  caveat  against  a  grant  upon 
a  resurvey,  judgment  for  plain- 
tiff upon  the  facts  found,  170 

On  a  caveat  against  a  grant  upon 
a  resurvey,  judgment  for  defen- 
dant upon  the  facts  found,  170 

CERTIOR.mi. 

Awarded  to  remove  a  cause  ori- 
ginally cognizable  in  a  circuit 
court,  41 

Awarded  to  remove  a  cause  where 
justice  cannot  be  done  in  county 
court,  41 

Awarded  to  remove  a  cause  for 
unreasonable  neglect  or  delay,       41 

Form  of  certiorari  to  remove  a 
cause,  41 

Order  made  in  county  court  upon 
production  of  certiorari,  42 

Order  to  docket  cause  upon  return 
of  certiorari,  42 

Form  of  certiorari  in  a  case  of 
supersedeas,  373 

Certiorari  awarded  defendant  on 
suggestion  of  diminution,  373 

Form  of  certiorari  issued  on  sug- 
gestion of  diminution,  374 

Transcript  of  the  record  of  a 
judgment  in  circuit  court,  in  a 
suit  removed  thither  by  certio- 
rari, 393 


CHANGE  OF  PARTIES. 

See  titles  Matement,  Marriage, 
Revival  of  Suits,  and  Scire  Fa- 
cias. 

CLERK. 

In  an  action  against  the  clerk  of 
a  court  for  improperly  endorsing 
credits  on  an  execution,  what 
must  be  averred  in  the  declara- 
tion, 575 

CLERK'S  FEES. 

Notice  oi"  motion  against  an  offi- 
cer for  clerk's  fees  collected,        288 

COLLATERAL  BOND. 

In  debt  on  collateral  bond,  plea 
by    an    administrator    denying 
causes  of  action  set  forth  in  par- 
ticular breaches,  63 
Verdict  for  plaintiff,                        129 
Judgment  for  plaintiff,                     141 
Judgment  which  remains  as  a  se- 
curity for  future  damages,             141 
Judgment  which  remains  as  a  se- 
curity for  future  instalments,       142 
Judgment  where  the  jury  find 
under  $6.66  cents,                        142 

COMMISSION. 

See  title  Depositions. 

COMMITTEE. 

Of  the  official  bond  of  a  commit- 
tee, 448 

Scire  facias  to  revive  against  com- 
mittee a  suit  depending  against 
idiot  or  lunatic,  36 

Scire  facias  to  revive  against 
idiot  or  lunatic  a  suit  depending 
against  bis  committee,  36 

COMMON  CARRIER. 

Nature  of  his  liability,  522 

Declaration  in  assumpsit  against 
a  common  carrier,  522 

Pleas  by  common  carrier  to  ex- 
cuse the  non-delivery  of  goods,    73 

COMMON  COUNTS. 

Forms  of  counts  in  assumpsit  for 
goods,  for  work  and  materials, 
for  money  lent,  for  money  paid, 
for  money  received  and  for  mo- 


606 


INDEX. 


ney  found  due  on  account  sta- 
ted, and  decisions  relating  there- 
to, 550  to  554 

COMMON  ORDER. 

See  ConditionalJudgment, &nd    13.14 

COMMON  ORDER  CONFIRMED. 

See  Conditional  Judgment  Con- 
firmed,  and  14 

COMMONWEALTH. 

Petition  by  person  having  de- 
mand against  the  common- 
wealth, 332 

Answer  of  auditor  to  such  peti- 
tion, 332 

Judgment  upon  such  petition,       332 

CONDITIONAL  JUDGMENT. 

In  a  suit  commenced  by  capias,  13 
In  a  suit  commenced  by  summons,  13 
Where  the  officer  is  kept  off  by 

force  of  arms,  13 

After  proclamation,  14 

After  attachment,  14 

In  replevin,  159 

In  suit  for  freedom,  166 

In  ejectment,  173 

In  a  writ  of  right,  183 

CONDITIONAL.  JUDGMENT 
CONFIRMED. 

In  common  personal  actions,  14 

In  replevin,  159 

In  suit  for  freedom,  166 

See  also  titles  Ejectment  and  Writ 
of  Right. 

CONDITIONS  PERFORMED. 

Plea  of  conditions  performed  to 
action  of  debt  on  bounds  bond,      75 

Plea  of  conditions  performed  in 
other  cases,  75,  6 

Defective  replications  to  pleas  of 
conditions  performed,  84.  465 

CONFESSION  OF  JUDGMENT. 

1.  In  the  office. 

Notice  by  defendant  in  custody 

that  he   will  confess  judgment 

in  the  office,  6 

Entry  of  judgments  confessed  by 

defendant  not  in  custody,  5 

Entries  of  judgments  confessed 

by  defendant  in  custody,  7 


How  defendant  prayed  in  custody 
may  be  discharged  therefrom,         7 
2.  In  court. 

In  debt  on  bond  or  bill  penal,  97 

In  debt  on  single  bill  or  promis- 
sory note  where  no  interest  is 
demanded,  98 

In  debt  for  principal  and  interest, 
or  principal,  interest  and  char- 
ges of  protest,  98 
In  debt  on  bond  with  collateral 

condition,  99 

In  assumpsit  or  covenant,  98 

In  detinue,  99 

In  action  of  tort,  99 

Where  stay  of  execution,  100 

Where  defendant  is  in  custody,         7 
Where  defendant  is  an  executor 

or  administrator,  100 

Where  action  is  against  several 
defendants,  and  the  confession 
is  by  one,  100 

In  action  of  debt  against  an  heir, 
he  acknowledges  the  action  and 
shews  the  lands  which  he  has  by 
descent,  and  judgment  is  enter- 
ed, to  be  levied  of  those  lands,  101 
Power  of  attorney  for  confessing 
judgment,  100 

Entry  of  judgment  under  such 
power,  101 

CONSTABLE. 

Declaration  in  debt  on  the  bond 
of  a  constable  for  breach  of  duty 
under  a  distress  for  rent,  460 

See  also  title  Sheriffs. 

CONTEMPT. 

See  titles  Subpcena,  Witness,  and 

53,  4,  5 

CONTINUANCE. 

Order  of  continuance  at  the  costs 
of  the  party  asking  it,  94 

CONVERSION. 
See  Trover. 

CONVEYANCE. 

Conveyance  of  the  real  estate 
mentioned  in  the  schedule  of  an 
insolvent,  230 

CORPORATION. 

When  a  corporation  sues,  what 
must  be  alleged,  404 

Assumpsit  may  now  be  brought 
by  a  corporation,  499 


INDEX. 


607 


Or  against  a  corporation,  499 

Summons  instituting  action  a- 
gainst  a  corporation,  5 

Whether  summons  may  be  is- 
sued from  one  county  or  corpo- 
ration, directed  to  the  officer  of 
another,  19.  20 

Corporation  pleads  by  attorney,      20 
Pleas  in  abatement  by  a  corpo- 
ration, 19.  20 
Distringas  against  a  corporation,   238 

COSTS. 

See  Security  for  Costs,  and        26,  7 

Judgment  for  costs  of  personal 
representative,  where  the  plain- 
tiff has  judgment  against  him 
when  assets,  145 

Judgments  for  defendant's  costs, 
upon  verdicts  for  him,  148 

Judgment  for  defendant's  costs, 
where  plaintiff  is  an  executor 
or  administrator,  148 

Fi.  fa.  for  defendant  for  costs, 
or  for  costs  and  damages,  210 

COUNCIL. 

Summons  instituting  action  a- 
gainst  a  member  of  the  coun- 
cil of  state,  5 

COUNTY  LEVY. 

Notice  of  motion  against  sheriff 
for  failing  to  pay  county  levy,     287 

Notice  of  motion  against  sheriff 
for  failing  to  render  account  of 
county  levy,  288 

COVENANT. 

1.  Of  the  rights  of  the  parties. 
Obligation    of  covenantor   con- 
strued  according  to  its   intent 
and  meaning,  482 

But  whatever  obligation  really  is, 
must  be  performed,  482 

Of  obligations  where  the  cove- 
nants are  dependent,  482 

W^here  on  one  side  only,  perform- 
ance depends  on  prior  perform- 
ance by  other,  483 

Where  the  covenants  are  wholly 
independent,  484 

Where  performanee  by  plaintiff 
need  not  be  averred  or  proved,    484 

2.  Of  the  action. 

By  and  against  whom  action  for 
breach  of  covenant  may  be  main- 
tained, 486 

3.  Of  the  mode  of  declaring. 
How    breach    of   the    covenant 

must  be  assigned,  484 


How  plaintiffs,  claiming  as  heirs 
or  devisees  of  covenantee  must 
deduce  title,  487 

4.  Precedents  of  declarations  in  cases 

for  breach  of  covenant. 

These  precedents  and  the  deci- 
sions relating  thereto  eStend 
from  488  to  496 

The  cases  are  enumerated  in  the 
table  of  contents  prefixed  to  this 
volume.     See  Ivii.  and  Iviii. 

5.  Plea,  replication  and  issue. 

In  covenant  for  hire  and  cloth- 
ing, plea  of  covenants  perfor- 
med, 76 

Entry  of  plea  in  writing,  alleging 
performance  of  covenants,  and 
of  replication  thereto  and  issue,     89 

6.  Verdict. 

On  writ  of  enquiry,  124 

For  plaintiff,  upon  an  issue,  129 

7.  Judgment. 

Upon  confession,  98 

Upon  verdict  for  plaintiff,  143 

Where  the  jury  find  under  $6.66 
cents,  143, 4 

3.  Execution. 

Writs  of  fieri  facias,  208 

COVERTURE. 

Concerning  replication  to  plea  of 
coverture,  84, 5 

Verdict  upon  issue  on  this  plea,    125 

CRIM.  COK. 

Of  the  action  for  criminal  con- 
versation with  plaintiff 's  wife,    592 

Whether  action  lies  for  act  done 
after  agreement  by  husband  and 
wife  to  live  separately,  592 

Precedent  of  a  declaration  for 
crim.  con.  593 

CURATOR. 

Of  the  official  bond  of  a  curator,  448 
Scire  facias  to  revive  suit  brought 
by  a  curator  in  the  name  of  exe- 
cutor or  administrator,  36 

D 

DEATH  OF  PARTIES. 

1.  Of  death  before  suit  or  pending 

action,  see  title  Abatement. 

2.  Of  death  after  judgment  and  be- 
fore execution,  see  Scire  facias. 

3.  Of  death  in  execution. 

Debtor  dying  in  execution,  new 
execution  against  his  goods  and 
chattels,  235, 6 


608 


INDEX. 


Debtor  dying  in  execution,  new 
execution  against  his  lands  and 
tenements,  '  236 

DEBET  AJ^D  DETIKET. 

An  heir  should  be  charged  in  the 
debet  and  detinet,  418 

So  also  an  executor  when  sued 
for  a  devastavit,  448 

Consequence  of  declaring  in  the 
detinet  only,  instead  of  in  the 
debet  and  detinet,  407.  448 

DEBT. 

1.  Of  the  mode  of  declaring  in  debt. 
What  is  to  be  demanded,  406 
Of  the  debet  and  detinet,                 407 
Description  of  the  parties,              407 
Description  of  the  note  or  obliga- 
tion, 407 

Where  plaintiffs  sue  as  partners,  410 
Default  of  payment,  407 

2.  Precedents  of  declarations  in  debt. 
These  precedents  and  the  deci- 
sions  relating    thereto    extend 
from  409  to  481 

The  cases  are  enumerated  in  the 
table  of  contents  prefixed  to  this 
volume.     See  xlv.  to  xlvii. 

3.  Verdict.  , 

On  writ  of  enquiry,  124 

On  issue,  125 

4.  Judgment. 

Upon  confession,  97  to  101 

In  other  cases,  139  to  142 

5.  Execution. 

Writs  of  fieri  facias,  207,  8 

DEBT  QUI  TAM. 

See  Qui  Tarn. 

DEDTS  OF  SUPERIOR   DIGNITY. 

Plea  of  debts  of  superior  dignity 
to  a  greater  amount  than  the 
assets  in  hand,  81,  2 

Verdict  for  plaintiff  on  this  plea,  127 

DECLARATIONS. 

1.  Of  declarations  in  actions  gene- 
rally. 
As  to  names  of  parties,  402 

As  to  statement  of  time,  402 

What  must  be  alleged,  where  a 

corporation  sues,  404 

What  counts  may  be  joined,  405 

What  may  be   joined  in   same 

count,  406 

Unnecessary  length,  in  declara- 
tions, now  discountenanced  in 
England,  502 


•  2.  Of  declarations  in  particular  actions. 

See  under  the  appropriate  head, 
as  for  example.  Debt,  Covenant, 
Assumpsit,  Trespass,  Detinue, 
Case,  Replevin,  Ejectment. 
3.  Proceedings  concerning  declara- 
tions. 

Entry  of  declaration,   20.  21.  25.  159 

Rule  to  declare,  14 

Dismission  for  want  of  declara- 
tion, 14 

Dismission  for  want  of  declara- 
tion set  aside  in  court,  15 

Leave  granted  to  amend  decla- 
ration and  cause  remanded  to 
rules,  93 

See  also  title  Demurrer. 


DEED. 

See  Authentication,  and 
See  Mandamus,  and 

DEMAND. 


118 
342 


Demand  at  place  of  payment  not 
necessar_y  to  charge  acceptor  of 
bill  or  maker  of  note,  428 

But  necessary  to  charge  endorser,  428 
When  demand  must  be  made,       428 
When  obligee  in  a  bond  is  bound 
to    prove    demand   before   suit 
brought,  411 

Declaration  in  debt  on  a  penal 
obligation  payable  on  demand,    411 

DEMURRER. 

1.  Form  of  demurrer. 

To  plea  to  the  jurisdiction,  22 

To  plea  in  abatement,  22 

To  declaration  on  count,  24.  187 

To  one  of  the  breaches  assigned 
in  declaration,  24 

To  a  plea  in  bar,  65 

3.  Entries  of  demurrers,  rules  there- 
upon and  joinders. 

Entry  at  rules  of  demurrer  to  de- 
claration, and  rule  to  join,  25 

Entry  in  court  of  declaration  de- 
murred to  ore  tenus,  and  joinder 
in  demurrer,  88 

Entry  of  demurrer  to  scire  fa- 
cias and  joinder  therein,  265,  6 

Entry  at  rules  of  demurrer  to 
plea  and  joinder,  23 

Entry  in  court  of  plea  filed,  de- 
murrer thereto  and  joinder,  90 

Entry  of  demurrer  to  two  pleas 
under  act  of  April  16.  1831, 
with  joinder,  92 

General  demurrer  filed  to  decla- 
ration after  other  pleas,  93 


INDEX. 


609 


3.  After  argument  of  demurrer,  leave 

to  amend  pleading  demurred  to. 
See  title  Jlmcndm,ent. 

4.  Entry  of  opinion  upon  demurrer. 
Upon    demurrer    to    declaration 

containing  several  counts  some 

of  which  are  good,  106 

Upon  demurrer  to  a  count  con- 
taining several  breaches,  one  of 
which  is  well  assigned,  106 

Upon  demurrer  to  a  declaration 
or  count  containing  a  demand  of 
several  matters  which  are  divi- 
sible, and  one  of  which  is  well 
claimed,  106 

Upon  demurrer  to  a  declaration 
in  which  there  is  a  misjoinder  of 
counts,  106 

After  court's  opinion  for  defen- 
dant on  demurrer  to  plea,  plain- 
tiff allowed  to  withdraw  his 
joinder  and  to  reply,  111 

5.  Entry  of  judgment  upon  demur- 

rer. 

Where  defendant  has  demurred 
and  pleaded,  judgment  overru- 
ling demurrer,  106 

Where  defendant  has  demurred 
without  pleading,  judgment 
overruling  his  demurrer  and  al- 
lowing him  to  plead,  107 

Where  defendant  has  demurred 
without  pleading,  and  his  de- 
murrer being  overruled,  final 
judgment  is  entered,  107 

Final  judgment  in  favour  of  a 
defendant  upon  his  demurrer  to 
the  declaration,  107 

Judgment  for  defendant  upon  de- 
murrer to  a  particular  count,        108 

Judgment  for  plaintiff  upon  de- 
murrer to  a  plea  in  abatement,     108 

Judgment  for  defendant  upon  de- 
murrer to  his  plea,  108 

Judgment  for  defendant  upon  de- 
murrer to  a  plea  in  abatement 
pleaded  by  him  to  particular 
counts,  109 

Judgment  for  plaintiff  upon  de- 
murrer to  a  replication  to  a  plea 
in  abatement,  109 

Judgment  in  another  case  for 
plaintiff  upon  such  demurrer, 
because  the  plea  was  bad,  109 

Judgment  for  defendant  upon  de- 
murrer to  replication  to  plea  in 
abatement,  109 

Judgment  for  defendant  upon  de- 
murrer to  plea  in  bar,  because 
declaration  was  bad,  110 

Judgment  for  defendant  upon  de- 
murrer to  plea  which  was  ad- 
judged good,  110 

77 


Demurrer  to  one  of  defendant's 
pleas  sustained,  110 

Demurrer  sustained  to  defen- 
dant's only  plea,  1 10 

Demurrer  sustained  to  plea  in 
debt  on  judgment,  and  judg- 
ment not  being  for  interest,  writ 
of  enquiry  awarded,  111 

Where  plea  is  only  to  one  count, 
demurrer  thereto  overruled,         111 

Upon  demurrer  to  replication,  fi- 
nal judgment  in  favour  of  plain- 
tiff because  plea  is  bad.  111 

Demurrer  to  replication  over- 
ruled, and  defendant  allowed  to 
make  up  issue  in  fact,  112 

Upon  demurrer  to  replication,  fi- 
nal judgment  in  favour  of  de- 
fendant, 112 

Plea  being  to  one  count,  judg- 
ment for  defendant  upon  his  de- 
murrer to  the  replication  there- 
to, 112 

Judgment  upon  demurrer  to  re- 
joinder to  replication,  112 

Judgment  for  defendant  upon  de- 
murrer to  rejoinder  to  replica- 
tion because  replication  is  bad,    113 

Demurrers  filed  to  certain  counts 
in  the  declaration  ;  sixteen  pleas 
filed ;  demurrers  to  some,  and  is- 
sues in  fact  upon  others,  113 

Defendant  in  last  case  tendered 
two  other  pleas  which  were  re- 
fused ;  demurrers  argued ;  and 
judgment  thereupon,  113 

Four  pleas  tendered,  but  first, 
third  and  fourth  only  received ; 
replication  to  first  and  fourth, 
and  issues ;  replication  also  to 
third,  rejoinder  thereto,  and  de- 
murrer to  rejoinder;  judgment 
for  plaintiff  on  demurrer;  and 
verdict  for  him  on  other  issues,  114 
6.  Judgment  in  appellate  court. 

Judgment  for  defendant  reversed 
because  improperly  given  for 
him  upon  demurrers  to  replica- 
tions to  second  and  third  pleas, 
and  new  judgment  entered  for 
him  by  appellate  court,  upon  de- 
murrer to  rejoinder  to  replica- 
tion to  first  plea,  380 

Judgment  for  plaintiff,  where  de- 
fendant had  demurred,  reversed 
for  defect  in  declaration,  and  fi- 
nal judgment  entered,  382 

Judgment  for  defendant  on  de- 
murrer to  declaration  reversed ; 
and  there  being  no  issue  in  fact, 
and  the  action  being  for  dama- 
ges, cause  remanded  to  have  the 
damages  assessed,  383 


610 


INDEX. 


Judgment  for  defendant  on  de- 
murrer to  one  plea,  reversed, 
and  cause  remanded  for  trial  of 
issue  in  fact  joined  upon  ano- 
ther plea,  383 

Judgment  for  plaintiff,  on  special 
demurrer  to  his  replication,  re- 
versed; but  defect  being  only 
in  form,  cause  remanded,  with 
leave  to  amend,  383 

DEMURRER  TO  EVIDENCE. 

Form  of  demurrer  to  evidence,      121 

Joinder  by  defendant  in  plaintiff's 
demurrer,  121 

Joinder  by  plaintiff  in  defendant's 
demurrer,  121 

Entry  where  there  is  a  demurrer 
to  evidence,  121 

Verdict,  assessing  damages  con- 
ditionally, 131 

Verdict  in  detinue,  assessing 
price  and  damages  conditional- 
ly, 132 

Judgment  upon  demurrer,  149 

DEPOSITIONS  OF  VS^ITNESSES. 

1.  Affidavit    to    obtain    commission 

from  clerk. 
That  witness  is  unable  to  attend 

court,  45 

That  there  is  a  single  witness  to 

a  material  point,  45 

That  witness  resides  out  of  the 

commonwealth,  45 

2.  Order  of  court  awarding  commis- 

sion. 

To  take  depositions  de  bene  esse,     46 

To  take  depositions,  in  chief,  of 
witnesses  residing  in  another 
state,  iQ 

To  take  depositions,  de  bene  esse, 
of  witnesses  for  both  parties  in 
the  state,  46 

To  take  depositions,  in  chief,  of 
witnesses  for  both  parties  out  of 
the  state,  46 

3.  Form  of  commission. 

To  take  deposition  de  bene  esse,       47 
To  take  deposition  of  witness  out 
of  the  commonwealth,  47 

4.  Where  witnesses  are  in  a  foreign 

country. 

Notice  of  application  for  commis- 
sion, 47 

Order  awarding  commission,  48 

5.  Kotice  of  time  and  place  of  taking 

depositions. 
Form  of^otice,  48 

Form  wfifere  notice  is  given  to 

non-resident  party,  49 


Affidavit  of  service  or  publication 
of  notice,  49 

6.  Return  of  commission,  49 

DEPUTY  SHERIFF. 

See  Sheriff. 

DETINUE. 

1.  Object  of  the  action  and  for  what 

it  may  be  maintained. 

2.  Plaintiff  must  have  title  and  de- 

fendant possession. 
What  title  is  sufficient,  560 

What  possession  in  defendant  will 

support  the  action  against  him,    562 
Defendant's    possession   charges 

him  in  his  individual  character,  562 

3.  Of  the  dclaration. 

How  it  may  describe  the  slave  or 
other  thing  sued  for,  562 

Averment  of  property  necessa- 
ry, 562 

Value  must  be  laid  separately  for 
each  slave,  562 

Not  necessary  to  allege  a  special 
demand,  562 

4.  Forms  of  the  counts,  563 

5.  Where  defendant,  dies  pending  the 

action. 

What  should  be  set  forth  in  scire 
facias  to  revive  action  against 
defendant's  representative,  35 

Form  of  the  scire  facias,  34,  5 

6.  Verdict. 

On  writ  of  enquiry,  124 

For  plaintiff,  responding  to  plea 

of  non  detinet,  131 

Where  evidence  is  demurred  to, 
assessing  price  and  damages 
conditionally,  132 

7.  Judgment. 

Upon  confession,  99 

After  verdict  for  plaintiff,  142 

Against  a  personal  representa- 
tive, 145 

8.  Action  on  the  judgment. 
Whether  such  an  action  can  be 

maintained,  562 

If  it  can,  judgment  must  be  de- 
clared on,  562 
If  not  declared  on,  it  cannot  be 
relied  on  as  evidence  of  title,       562 

9.  Execution  on  the  judgment. 

Form  of  the  writ  of  distringas,    238 

Fi.  fa.  for  damages  and  costs  in 
same  writ  with  distringas,  238 

Ca.  sa,  for  damages  and  costs  in 
same  writ  with  distringas,  239 

Distringas  directed  to  be  super- 
seded as  to  specific  thing,  and 
executed  for  alternative  value,    239 


IXDEX. 


611 


Alternative  value  not  being  ren- 
dered, fi.  fa.,  elegit  or  ca.  sa.  al- 
lowed to  issue,  239,  40 

10.  Proceedings  after   judgment   in 

appellate  court. 

Distringas  and  fi..  fa.  on  a  judg- 
ment of  circuit  court,  affirming 
judgment  of  county  court,  389 

After  affirmance  of  judgment, 
proceedings  to  ascertain  the  va- 
lue of  the  hires  of  the  slave  re- 
covered, which  have  accrued 
since  the  verdict  and  judgment,  396 

11.  Proceedings   after  judgment,   a- 

gainst   defendant's   executor   or 

administrator. 
Form  of  scire  facias,  247 

Award  of  execution  thereupon,     263 
Distringas  and  fi.  fa.  after  such 

award,  271 

12.  Proceedings  after  judgment,  a- 

gainst  defendant's  bail. 
Form  of  scire  facias,  257 

Execution  aft^r  award  thereof,      273 

DEV.iSTjiVIT. 

Declaration  in  debt  on  a  judg- 
ment against  an  executor,  sug- 
gesting a  devastavit,  447 

Consequence  of  not  declaring  in 
such  case  in  the  debet  as  well  as 
in  the  detinet,  448 

DEVISEES. 

1.  Where  proceeded  against,  for 

debts  of  testator. 

For  what  debts  of  testator,  devi- 
sees are  liable,  418 

Declaration  in  debt  by  obligee 
against  heirs  and  devisees  of 
obligor  jointly,  418 

Remedy  formerly  confined  to  ac- 
tions of  debt,  496 

Now  extended  to  actions  of  co- 
venant,  496 

Verdict  where  one  of  the  de- 
fendants is  a  devisee  who  had 
aliened,  and  the  replication  is 
under  the  statute,  127 

2.  }Vhen    suit  for  land   is  revived 

against  them,  or  in  their  names. 

Upon  death  of  defendant  in 
ejectment,  scire  facias  awarded 
against  devisees,  176 

Writ  of  scire  facias  in  such  case,    176 

Upon  return  of  scire  facias  exe- 
cuted, devisees  made  parties  to 
the  action,  176 

Upon  death  of  party  in  a  writ  of 
right,  scire  facias  awarded  for 
or  against  devisees,  188 


Writ  of  scire  facias  in  such  case,  188 
Upon  return  of  scire  facias  exe- 
cuted, devisees  made  parties  to 
the  action,  189 

DISCONTINUANCE. 

Discontinuance  of  suit  at  second 
term,  after  suggestion  of  plain- 
tifi"s  death,  34 

Discontinuance  by  plaintiff  after 
defendant's  appearance,  96 

Discontinuance  by  consent,  with- 
out damages  or  costs,  96 

DISCOUNTS. 

After  judgment  for  plaintiff*, 
agreement  by  him  to  allow 
discounts^  150 

DISCOVERY. 

Interrogatories  to  a  party  to  ob- 
tain a  discovery  from  him,  57 

Affidavit  to  interrogatories,  57 

Entry  of  interrogatories  being 
filed  and  order  thereupon,  57 

Affidavit  to  obtain  the  discovery 
and  production  of  a  writing  in 
the  possession  of  the  adverse 
party,  58 

Entry  of  affidavit  being  filed  and 
order  thereupon,  58 

DISMISSION. 

Dismission  for  want  of  declara- 
tion, 14 

Dismission  for  want  of  declara- 
tion set  aside  in  court,  15 

Dismission  for  want  of  security 
for  costs,  27 

Debt  being  paid  after  suit  brought, 
suit  dismissed  at  defendant's 
costs,  97 

Certificate  of  defendant  in  slan- 
der, produced  and  recorded  by 
consent,  and  suit  dismissed  at 
defendant's  costs,  97 

DISSOLUTION  OF  INJUNCTION. 

See  Injunction. 

DISTRESS. 

Affidavit  to  authorize  distress,        151 
Warrant  of  distress,  151 

Clause  to  be  inserted,  where  pro- 
perty has  been  removed  from 
the  premises,  151 

Where  goods  are  distrained  for 
rent  and  restored  to  th^debtor, 
bond  to  pay  at  the  end  of  three 
months,  277 


612 


INDEX. 


Where  Bale  is  made  of  goods 
distrained,  bond  of  the  buyer 
to  pay  at  the  end  of  three 
months,  278 

Notice  of  motion  on  3  months 
bond,  given  by  owner  or  buyer 
of  goods  distrained,  279 

Entries  upon  motions  on  such 
bonds,  279 

Where  the  court  ascertains  the 
value,  in  money,  of  rent  re- 
served in  any  thing  other  than 
mioney,  and  property  distrained 
for  rent  is  sold,  notice  of  mo- 
tion against  officer  for  the  pro- 
ceeds, 296 

Declaration  in  debt  on  the  bond 
of  a  constable,  for  breach  of 
duty  under  a  distress  for  rent,     460 

Of  the  action  for  an  unlawful 
distress,  573, 4 

Of  the  process  of  distress,  in 
action  of  waste,  see  title 
Waste,  and  201, 2 

DISTRINGAS. 

Rule  against  a  late  sheriff  to 
shew  cause  why  a  distringas 
should  not  issue  to  compel  him 
to  sell,  220 

Rule  made  absolute  and  distrin- 
gas awarded,  221 

Writ  of  distringas  against  a  late 
sheriff  to  compel  him  to  sell,       221 

Distringas  against  a  corporation,  238 

Distringas  in  detinue,  238 

Distringas  directed  to  be  super- 
seded, as  to  specific  thing,  and 
executed  for  alternative  value,     239 

Distringas  and  ji.  fa.  after  aweird 
of  execution  against  an  execu- 
tor or  administrator,  upon  scire 
facias  reviving  judgment  in 
detinue  rendered  against  dece- 
dent, 271 

Distringas  and  fi.  fa.  on  a  judg- 
ment of  circuit  court  affirming 
judgment  of  county  court,  in 
detinue,  389 

DISTRIBUTEE. 

Right  of  distributee  to  slaves 
purchased  with  the  means  of 
the  estate,  561 

DOWER. 

1.  Assignment  by  the  heir. 

Order  at  the  instance  of  the  heirs, 
directing  widow's  dower  to  be 
assigned,  191 

Assignment  returned  and  same 
established  by  consent  of  wi- 
dow and  the  heirs,  191 


2.  Writ  de  quarentina  habenda. 

3.  Action  for  dower. 

Writ  of  unde  nihil  habet,  191 

Count,  192 

Plea  that  husband  was  not  seized 
of  an  estate  of  inheritance; 
with  similiter  thereto,  192 

Plea  of  jointure  in  lieu  of  dower,  192 

Verdict  for  demandant  where  the 
husband  died  seized,  and  judg- 
ment thereupon,  193 

Verdict  for  demandant  where  the 
husband  has  aliened,  and  judg- 
ment thereupon,  194 

Verdict  for  tenant,  and  judgment 
thereupon,  194 

Fi.  fa.  for  demandant  for  her  da- 
mages and  costs,  210 

Writ  of  seisin  after  judgment  for 
demandant,  where  the  husband 
died  seized,  241 

Writ  of  seizin  after  judgment 
for  demandant,  where  the  hus- 
band had  aliened,  241 

DURESS. 

Verdict  upon  plea  of  duress,         125 

£ 

EJECTMENT. 

Declaration  in  ejectment,  171 

Notice  from  the  fictitious  to  the 
real  defendant  to  appear  at 
court,  172 

Notice  from  the  fictitious  to  the 
real  defendant  to  appear  at 
rules,  173 

Affidavit  of  service  on  the  real 
defendant,  173 

Statement  shewing  the  profits 
and  damages  which  the  plaintiff 
means  to  demand,  173 

Conditional  order,  173i 

Judgment  by  default,  174 

Defendant  made  and  judgment 
confessed,  174 

Person  makes  himself  defendant, 
pleads  general  issue  and  enters 
into  the  common  rule,  175 

Where  there  are  several  tenants 
who  sever  in  pleading,  and 
each  enters  into  the  consent 
rule  for  himself,  175 

Order  of  survey,  175 

Upon  death  of  lessor,  security 
for  costs  required,  175 

Upon  death  of  defendant,  scire 
facias  awarded  against  his  heirs 
or  devisees,  176 

Form  of  scire  facias,  176 


INDEX. 


613 


Upon  return  of  scire  facias  exe- 
cuted, heirs  or  devisees  made 
parties  to  the  action,  176 

Term  of  demise  enlarged,  176 

A  new  demise  added,  177 

Notice  to  plaintiff  who  claims 
under  a  mortgage  or  trust 
which  is  satisfied,  177,  8 

Notice  by  defendant  who  is  a 
vendee,  or  the  heir  of  a  ven- 
dee entitled  to  specific  exe- 
cution, 178 

Special  verdict  returned,  178 

Judgment,  under  the  statute,  for 
defendant  entitled  to  a  convey- 
ance of  the  legal  title  from  the 
vendor  or  his  heirs,  178 

Judgment  against  vendee,  or 
heirs  of  vendee,  who  made  de- 
fence under  the  statute,  179 

(Jeneral  verdict  for  plaintiff,  and 
judgment  thereon,  179 

Verdict  for  plaintiff,  assessing  da- 
mages for  mesne  profits,  and 
judgment  thereon,  179 

Verdict  for  less  land  than  the 
quantity  stated  in  the  decleira- 
tioa,  and  judgment  thereupon,    180 

General  verdict  for  defendant, 
and  judgment  thereon,  180 

After  verdict  for  plaintiff,  term 
of  demise  enlarged,  and  then 
judgment  entered,  181 

Where  land  is  recovered  west  of 
the  Alleghany,  and  defendant 
seeks  to  get  the  value  of  his 
improvements,  judgment  sus- 
pended till  allegations  can  be 
enquired  into,  181 

Jury  sworn  to  ascertain  the  addi- 
tional value  given  to  the  land 
by  the  improvements ;  and  ver- 
dict found,  181 

Pending  injunction  to  judgment, 
term  of  demise  having  expired, 
rule  to  enlarge  the  same,  181 

Rule  made  absolute,  and  writ  of 
possession  awarded,  182 

Transcript  of  the  record,  364 

Affirmance  of  judgment,  386 

Fieri  facias  for  damages  and  costs,  209 

Writ  of  possession,  240 

Scire  facias,  upon  judgment,  a- 
gainst  defendant's  heir,  247 

Scire  facias,  for  renewal  of  judg- 
ment being  returned  executed, 
award  of  execution  thereupon,    262 

ELECTION. 

Debt  lies  against  an  officer  con- 
ducting an  election,  under  the 
statute  creating  a  penalty  for 
shewing  partiality,  481 


What  averments  in  the  declara- 
tion are  sufficient  in  such  a  case,  481 

ELEGIT. 

Writ  of  dtgit,  222 

Inquisition  under  elegit,  222 

Where  tenant  by  elegit  is  evicted 
of  lands  held  by  extent,  scire 
facias  to  have  new  execution,  253 
Elegit  after  award  of  execution 
against  an  heir,  upon  scire  fa- 
cias reviving  against  him,  judg- 
ment rendered  against  his  exe- 
cutor, 271 

ERROR. 

See  Amendment,  Release,  Writ  of 
Error. 

ESCAPE. 

1.  J\'otice  to  creditor,  ajidamt  by 
officer,  escape  warrant  and  pro- 
ceedings thereunder. 

Affidavit  by  sheriff  that  person 
in  execution  has  escaped,  224 

Warrant  to  retake  prisoner  who 
has  escaped,  224 

Note  given  by  jailor  to  the  per- 
son who  delivers  to  him  the  pri- 
soner taken  under  the  escape 
warrant,  225 

Return  of  the  execution  of  the 
warrant  to  the  court  of  the 
county  from  which  the  prisoner 
escaped,  225 

Warrant  to  retake  prisoner  who 
has  escaped  from  the  prison 
bounds,  227 

Notice  to  creditor  of  escape  from 
the  bounds,  228 

2.  Action  against  officer  for  escape. 
Of  the  amount  recovered  in  debt 

for  an  escape,  455 

Distinction  between  debt  and 
case,  455 

In  what  manner  prisoners  may 
be  delivered  over  to  new  sheriff, 
so  as  to  discharge  late  sheriff 
from  action  for  escape  after- 
wards, 572 

Declaration  in  case  against  new 
sheriff  for  escape  of  a  prisoner 
so  delivered,  572 

Verdict  for  plaintiff  in  action 
against  officer  for  an  escape,  to 
which  not  guilty  is  pleaded,         126 

3.  Motion  against  officer. 
Judgment  on  motion  by   credi- 
tor against  officer  for  suffering 

a  debtor  to  escape,  293 

Fi.  fa.  on  such  judgment,  294 


614 


INDEX. 


ESCHEAT. 

Information  by  attorney  for  the 
commonwealth  for  an  intrusion 
upon  land  which  was  escheated, 
and  of  which  the  commonwealth 
afterwards  had  possession,  328 

After  inquisition  of  escheat, 
claim  to  the  land  by  monstrans 
de  droit  or  traverse,  328 

Issue  made  up  on  monstrans  de 
droit  and  traverse,  329 

Verdict  found  for  the  claimant  of 
the  escheated  lands,  and  judg- 
ment that  inquisition  be  quash- 
ed, 329 

Issue  made  up  in  another  case  ; 
verdict  for  claimant ;  and  judg- 
ment that  inquisition  be  quash- 
ed and  the  hands  of  the  com- 
monwealth amoved,  329 

Issue  made  up  in  another  case  ; 
verdict  for  claimant  of  a  lease- 
hold interest;  and  judgment  that 
such  interest  be  reserved  in  the 
sale,  330 

Transcript  of  the  record  upon 
a  monstrans  de  droit,  365 

Petition  by  creditor  of  person 
whose  lands  have  been  escheat- 
ed, 330 

Judgment  on  such  petition,  331 

EXCEPTIONS. 
See  Bill  of  Exceptions. 

EXCEPTIONS  TO  BAIL. 
See  Bail,  and  28.  29 

EXECUTIONS. 

1.  Of  the  manner  of  issuing  execu- 

tions generally. 
To  whom  directed,  when  return- 
able, and  by  whom  they  bear 
teste,  207 

2.  Concerning  the  different  sorts  of 
executions. 

See  their  respective  titles,  to  wit. 
Fieri  Facias,  Venditioni  Expo- 
nas, Distringas,  Elegit,  Extendi 
Facias,  and  Capias  ad  Satisfa- 
ciendum. 

3.  Endorsement  on  execution. 
When  the   clerk   must  endorse 

that  no  security  is  to  be  taken,     301 
When  he  must  endorse  that  pro- 
perty had  been  tendered  under 
a  ca.  sa.  which  was  incumbered,    235 

4.  Process  where  defendant  dies  in 

execution. 
New  execution  against  goods  and 

chattels,  235, 6 

Or  against  lands  and  tenements,  236 


5.  Order  quashing  execution,  or  di- 
recting new  one. 

Execution  upon  judgment  against 
principal  and  sureties  quashed 
on  motion  of  sureties,  and  ex- 
ceptions filed  by  plaintiff,  242 

Another  case  of  an  execution, 
upon  judgment  against  princi- 
pal and  surety,  quashed  on  sure- 
ty's motion,  243 

Order  upon  defendant's  motion, 
to  quash  execution  issued  by  a 
justice  of  the  peace,  244 

Order  on  plaintiff's  motion  quash- 
ing execution  and  forthcoming    . 
bond  taken  under  it,  and  allow- 
ing him  to  sue  out  new  execu- 
tion on  the  original  judgment,     244 

Order  directing  new  execution 
to  be  issued,  244 

See  also  title  Forthcoming  Bond. 

6.  Motion  against  officer  for  not 
returning  execution  or  account  of 
sales,  or  for  not  paying  money. 

Notice  of  motion  against  officer 
for  not  returning  execution,         289 

Judgment  on  such  motion,  290 

Fi.  fa.  upon  such  judgment,         290 

Notice  of  motion  for  not  return- 
ing account  of  sales  of  goods 
sold  under  execution,  291 

Notice  of  motion  by  creditor 
against  officer  for  money  receiv- 
ed under  execution,  292 

Judgment  on  such  motion,  293 

Fi.  fa.  on  such  judgment,  293 

Notice  of  motion  against  officer 
and  sureties  for  surplus  arising 
from  sale  under  execution,  294 

Notice  of  motion  by  sheriff 
against  deputy  for  money  re- 
ceived under  execution,  298 

EXECUTORS  AND  ADMINISTRA- 
TORS. 

1.  How  to  sue  and  declare  for  and 
against  them  on  obligations  for 
the  payment  of  money. 

Executors  of  two  persons  cannot 
be  sued  in  same  action,  413 

Declaration  in  debt  against  exe- 
cutors on  bond  of  testator,  413 

Declaration  in  debt  on  a  joint 
bond  against  the  representative 
of  an  obligor  who  was  survived 
by  his  co-obligor,  414 

Who  is  to  sue  on  bond  payable 
to  one  described  as  executor  or 
administrator  of  another,  414 

Declaration  in  debt  by  represen- 
tative of  obligee  against  obli- 
gor, 414 


INDEX. 


615 


What  must  be  averred  in  decla- 
ration by  a  surviving  executor 
for  a  debt  due  the  testator,  415 

Declaration  in  debt  by  an  admi- 
nistrator de  bonis  non,  with  the 
will  annexed,  upon  a  penal  bill,  415 

2.  Against  an  executor  or  adminis- 

trator  and  his  sureties  for  a  de- 
vastavit. 

Declaration  in  debt  on  a  judg- 
ment against  an  executor  sug- 
gesting a  devastavit,  447 

What  exception  to  the  official 
bond  of  an  executor  or  adminis- 
trator is  disallowed,  448 

In  whose  names  action  upon  such 
bond  may  be  prosecuted,  448 

What  must  be  shewn  to  estab- 
lish a  breach  of  the  condition,    449 

At  whose  relation  the  action  may 
be  maintained,  449 

Precedent  of  a  declaration  on 
such  bond,  449 

What  must  appear  on  the  face  of 
the  declaration,  452 

3.  For  an  executor  or  administrator 

on  a  refunding  bond  taken  by  him. 
When  action  may  be  maintained 
on  such  bond,  455 

4.  Under   what   circumstances   ac- 

tion may  be  maintained  on  a 
bond  of  indemnity,  by  adminis- 
trator de  bonis  non  of  obligee,      471 

5.  Against  executors   and  adminis- 

trators, individually,  upon  pro- 
mises. 

When  an  action  will  lie  for  a  le- 
gatee upon  a  promise  of  the  ex- 
ecutor to  pay  his  legacy,  541,  2 

When  an  action  will  lie  upon  a 
promise  of  an  executor  or  ad- 
ministrator to  pay  a  debt  of  the 
decedent,  542,  3 

6.  For  or  against  an  executor  or  ad- 

ministrator for  a  trespass  or  con- 
version. 

When  trespass  lies  for  or  against 
a  personal  representative,  559 

Liability  of  executor  or  adminis- 
trator for  slaves  taken  by  him 
and  appropriated  as  assets, 
which  did  not  belong  to  dece- 
dent, 562.  564 

7.  On  the  subject  of  reviving  suits 

or  judgments,  see  titles  Revival 
of  Suits  and  Scire  Facias. 

8.  Concerning  pleas  by  an  executor 
or  administrator  in  respect  to  the 
assets. 

What  must  be  pleaded,  in  what 
form,  and  what  will  be  involved 
in  the  issues,  80.  81 

Plea  of  no  assets,  80 


Plea  of  no  assets  prater,  81 

Plea  of  debts  of  superior  dignity 
to  a  greater  amount  than  the  as- 
sets in  hand,  81,  2 
Plea  that  distribution  has  been 
made  of  estate  and  refunding 
bonds  taken,  83 
9.  Verdict  against  executor  or  admi- 
nistrator. 

On  plea  of  no  assets,  126 

On  plea  of  debts  of  superior  dig- 
nity to  a  greater  amount  than 
the  assets  in  hand,  127 

10.  Judgment  where  plaintiff  is  an 

executor  or  administrator. 
For  defendant's  costs,  148 

11 .  Judgment  in  action  against  execu- 

tor or  administrator  upon  con- 
fession whether  de  bonis  or 
when  assets,  100 

Judgment  de  bonis  in  common 
case,  144 

Judgment  de  bonis  with  a  special 
agreement  to  prevent  defendant 
being  charged  beyond  the  assets,  144 

Judgment  to  be  levied  for  part 
de  bonis  and  for  the  residue 
when  assets,  144 

Judgment  to  be  levied  for  the 
whole  when  assets,  145 

Judgment  for  costs  of  personal 
representative,  when  the  plain- 
tiff has  judgment  against  him 
when  assets,  145 

12.  Fi.  fa.  upon  a  judgment  against 

an  executor  or  administrator  to 

be  levied  de  bonis,  211 

EXIGI  FA  CMS. 

Writ  of  exigi  facias,  184 

EXONERETUR. 
See  Bail,  and  32.  33 

EXTENDI  FACIAS. 

Extendi  facias  against  an  heir  af- 
ter judgment  on  bond  of  ances- 
tor, 237 


FALSE  IMPRISONMENT. 
See  Trespass. 

FIERI  FACIAS. 

'  1 .  Form  of  fieri  facias  in  various 

cases. 
In  debt,  for  debt  and  costs,  207 

In  debt,  for  debt,    interest  and 

costs,  207 


616 


INDEX. 


In  debt  qui  tam,  208 

In  case  upon  a  promise,  for  dama- 
ges and  costs,  208 
In  case  upon  a  promise,  for  dama- 
ges, interest  and  costs,  208 
In  covenant,  208 
In  trespass,  208 
In  case  for  tort,  208 
In  replevin  for  plaintiff,  208 
In  replevin  for  defendant  against 

the  tenant,  209 

In  replevin  for  defendant  against 

plaintiff,  not  the  tenant,  209 

In  ejectment  for  damages  and 
costs,  209 

In  a  writ  of  right  for  damages 
and  costs,  209 

In  dower  for  damages  and  costs,  210 
In  waste,  210 

On  complaint  of  unlawful  entry 
or  detainer  for  costs,  210 

For  a  defendant  for  costs,  or  for 
costs  and  damages,  210 

After  dissolution  of  an  injunc- 
tion, 211 
Upon  a  judgment  of  a  county 
court,  affirming  a  judgment  of 
a  justice  of  the  peace,                   211 
Upon  a  judgment  against  an  exe- 
cutor  or    administrator,   to   be 
levied  de  bonis,  211 
Returnable  to  rules,                         212 

2.  Endorsement  on  fieri  facias. 

By  clerk,  when  it  is  issued  on  a 
judgment  for  a  debt  contracted 
before  the  first  of  August  1837,  212 

By  sheriff  when  it  is  delivered  to 
him,  to  be  executed,  212 

3.  Affidavit  of  a  person  who  wishes 

the  benefit  of  the  act  exempting 
a  portion  of  the  property  of  poor 
debtors. 

4.  Return  upon  fieri  facias. 

As  prescribed  by  statute,  212 

When  levied  upon  goods  on  leas- 
ed premises  wherein  rent  is  re- 
served but  not  due,  213 

When  levied  upon  goods  on  leas- 
ed premises  whereon  rent  is  in 
arrear,  213 

When  levied  in  a  case  in  which 
rent  is  claimed  and  the  validity 
of  the  claim  is  doubted,  214 

Where  plaintiff  refuses  to  give 
indemnifying  bond,  and  proper- 
ty is  restored,  215 

Where  indemnifying  bond  is 
given,  215 

Where  a  forthcoming  bond  is  ta- 
ken, and  the  property,  or  some 
part  of  it,  is  not  delivered,  216 

Where  the  levy  is  on  slaves, 
mules,  work-oxen  and  horses,      216 


Where  debtor  authorizes  officer 
to  dispense  with  the  provisions 
of  the  act  of  March  3.  1821,         217 

Where  money  is  received  without 
any  levy,  218 

Where  money  is  received  after 
the  return  day,  under  an  execu-        , 
tion  levied  previously,  218 

Where  a  surplus  of  the  proceeds 
of  goods  sold  under  execution 
remains  after  satisfying  it,  219 

Where  property  of  which  the  sale 
is  indemnified,  sells  for  more 
than  enough  to  satisfy  the  exe- 
cution, 219 

Where  the  goods  taken  remain 
in  the  sheriff's  hands  until  an 
injunction  is  obtained  to  the 
judgment,  219 

Where  money  is  received  by  she- 
riff, but  an  injunction  is  obtain- 
ed to  the  execution,  before  pay- 
ment to  the  plaintiff,  220 

Where  goods  remain  in  sheriffs 
hands  unsold,  220 

Where  there  is  an  execution 
against  the  goods  and  chattels 
of  the  person  to  whom  the  mo- 
ney in  the  officer's  hands  is  pay- 
able, 218 

5.  Order  upon  return. 

Order  directing  money  made  un- 
der execution  in  favour  of  a  per- 
son, to  be  paid  in  satisfaction  of 
an  execution  against  him,  218 

6.  .^fter  aicard  of  execution  on  scire 

facias. 

Renewing  judgment  for  debt  or 
damages,  269 

Against  executor  or  administra- 
tor, reviving  judgment  rendered 
in  decedent's  lifetime,  270 

In  favour  of  executor  or  admi- 
nistrator, reviving  judgment  ob- 
tained by  decedent,  270 

7.  After  judgment  on  motion. 

For  surety  against  principal,  280 

For  surety  on  motion  by  him 
against  executor  or  administra- 
tor of  principal,  280 

By  creditor  against  officer  for  not 
returning  execution,  290 

By  creditor  against  officer  for 
money  received  under  execu- 
tion, 293 

By  creditor  against  officer  for  suf- 
fering a  debtor  to  escape,  294 

In  favour  of  sheriff  against  de- 
puty's sureties  for  taxes,  299 

8.  After  judgment  of  circuit  court, 

on  a  supersedeas. 
Affirming  a  judgment  of  county 
court,  387 


INDEX. 


617 


Reversing  judgment  of  county 
court,  389 

9.  After  judgment  of  court  of  appeals. 

Affirming  judgment  of  circuit 
court,  397 

Affirming  judgment  of  circuit 
court  which  affirmed  judgment 
of  county  court,  398 

Affirming  judgment  of  circuit 
court  which  reversed  order  of 
county  court,  398 

Reversing  judgment  of  circuit 
court,  399 

Reversing  judgment  of  circuit 

court  (which  reversed  judgment 

of  county  court,)  and  affirming 

judgment  of  county  court,  399 

10.  After  aicard  of  execution  on  scire 

facias  reviving  judgment  of  ap- 
pellate court. 

On  scire  facias  reviving  against 
executor  judgment  against  de- 
cedent obtained  in  county  court 
and  affirmed  in  circuit  court,        392 

On  scire  facias  reviving  in  favour 
of  executor,  judgment  by  dece- 
dent so  obtained  and  so  affirmed,  392 

On  scire  facias  reviving  in  name 
of  executor  or  administrator  a 
judgment  of  circuit  court  which 
has  been  affirmed  in  the  court  of 
appeals,  401 

FORCIBLE  ENTRY. 

See  Unlawful  Entry  or  Detainer. 

FOREIGN  BILL  OF  EXCHANGE. 

See  title  Bills  of  Exchange. 

FORTHCOMING  BOND. 

1.  Form  of  the  bond. 

For  the  forthcoming  of  property 
levied  on,  215 

For  the  forthcoming  of  property 
tendered  in  discharge  of  the 
body,  225 

2.  Remedy  for  failure  to  return  the 

bond. 
Notice  of  motion  against  officer 

for  not  returning  same,  290 

See  also,  465 

3.  Order  on  plaintiff's  motion, quash- 

ing execution  and  forthcoming 
bond  taken  under  it,  and  allow- 
ing plaintiff  to  sue  out  new  exe- 
cution on  the  original  judgment,  274 

4.  Motion  on  the  bond  for  award  of 

execution. 
Notice  of  motion,  274 

Defendants  not  appearing,  award 

of  execution  by  default,  274 

Entry  where,  after  execution  of 

bond,  an  injunction  was  obtain- 
78 


ed,  and  the  same  being  dissolv- 
ed, damages  are  included  in  the 
judgment,  27.5 

Execution  awarded  by  consent,     275 
Order   quashing   execution    and 
bond,  because  of  defects  in  exe- 
cution, 275 
Order  quashing  bond  as  faulty,     275 
Sheriff's    return    on    execution 
amended,  by  stating  that  super- 
sedeas was  received  before  day 
of  sale,  and  tliereupoa  motion 
*  overruled,  276 
See  also  title  Motion,  and           276, 7 

5.  Transcript  of  the  record  of  a  judg- 

ment on  a  forthcoming  bond, 
obtained  by  default,  370 

6.  Judgment  in  appellate  court. 
Judgment  in  original  action  be- 
ing erroneous,  subsequent  judg- 
ment on  forthcoming  bond,  de- 
pending on  it,  likewise  reversed^  381 

Order  overruling  motion  on  the 
bond,  because  of  supposed  de- 
fect, reversed,  and  case  reman- 
ded to  county  court,  385 

Order  overruling  motion  on  the 
bond  reversed,  and  final  judg- 
ment entered,  385 

FRAUD. 

1.  Of  the  remedy  against  a  vendor 
for  fraud. 

Action  lies  for  false  representa- 
tion or  suppression  of  truth,         578 
Case  of  a  false  representation,       578 
Case  of  suppression  of  the  truth,  579 
Declaration  must  always  allege 
fraud,  579 

Precedent  of  a  declaration  against 
a  vendor  for  fraud,  579  to  583 

2.  Of  the  remedy  for  a  fraudulent 

representation  in  any  other  trans~ 
action  than  a  sale. 
Case  of  a  partial  representation,    583 
Whether  the  motive  is  material,    583 
Enough  that  defendant  knew  he 
was  making  &  false  representa- 
tion, 584 
What  representation  will  be  con- 
sidered as  made  to  the  plaintiff,  584 
Class  of  cases  in  which  the  repre- 
sentation must  now  be  in  wri- 
ting, 585 
Precedent  of  a  declaration  for  a 
fraudulent  representation  as  to 
the  credit  of  another,         585  to  590 

3.  Pleas   against  a  specialty  under 

the  act  of  April  16.  1831,  and 
proceedings  thereupon. 
Defendant  is  not  restricted  to  one 
special  plea,  91 


618 


INDEX. 


Forms  of  pleas,  67  to  73 

How  plea  must  be  verified,  91 

Entry  of  special  pleas  being  filed,     91 

Entry  of  special  pleas  being  ten- 
dered and  not  received  for  want 
of  proper  afiidavit,  91 

Entry  of  special  pleas  being  re- 
jected because  not  offered  in 
time,  91 

Entry  of  special  pleas  being  re- 
jected as  naught,  92 

Entry  of  demurrer  to  two  pleas 
with  joinder ;  and  general  repli- 
cation to  third  plea  with  issue,       92 

Verdict  and  judgment  where  de- 
fendant is  relieved  against  his 
single  bill  in  toto,  136 

Verdict  and  judgment  where  de- 
fendant is  relieved  against  his 
obligation  in  part,  137 

Verdict  and  judgment  where  the 
jury  assess  damages  less  than 
plaintiiF's  demand,  137 

Verdict  and  judgment  where  the 
jury  assess  damages  exceeding 
plaintiff's  demand,  137 

FREEDOM. 

Warrant  issued  by  a  justice  up- 
on complaint  that  a  person  is  il- 
legally detained  as  a  slave,  163 

Bond  required  by  a  justice  upon 
the  appearance  of  the  possessor 
of  person,  alleged  to  be  so  de- 
tained, 163 

W^arrant  of  justice  committing 
complainant  to  custody,  164 

Petition  to  the  court  by  person 
who  complains  that  he  is  illegal- 
ly detained,  164 

Order  assigning  counsel  to  the 
petitioner,  165 

Order  awarding  process  to  an- 
swer the  complaint,  165 

Order  of  court  denying  its  inter- 
ference, and  directing  no  pro- 
cess to  be  issued,  165 

Bond  given  pursuant  to  order  of 
court,  to  have  complainant  forth- 
coming to  answer  its  judgment,  165 

Process  to  answer  the  complaint,  166 

Declaration,  166 

Conditional  judgment,  166 

Conditional  judgment  confirmed 
and  writ  of  enquiry  awarded,       166 

Writ  of  enquiry  executed,  and 
judgment  for  plaintiff,  167 

Issue  joined  and  office  judgment 
set  aside,  167 

Verdict  for  plaintiff  on  the  issue 
joined,  and  judgment  thereup- 
on, 167 


Verdict  for  defendant  on  such  is- 
sue and  judgment  thereupon,      167 

FULLY  ADMINISTERED. 

Concerning  this  plea,  see  80,  81 

FUTURE  BREACHES. 

See  JVezo  Breaches. 

G 

GARNISHEE. 

See  titles  .Attachment  and  Insol- 
vent. 

GOODS  SOLD. 

Liability  of  vendee  for  the  price 
of  goods  sold  and  virtually  deli- 
vered, 523 
Common  count  for  goods  sold,      550 
Under   what   circumstances  the 
common  count  is  proper,              551 

GOVERNOR. 

Summons  instituting  action  a- 
gainst  the  governor  of  the  com- 
monwealth, 5 

GUARDIAN. 

Of  the  official  bond  of  a  guar- 
dian, 449 

When  action  .  lies  against  the 
surety  in  such  bond,  452 

What  is  prima  facie  evidence  in 
such  action,  452 

What  is  insufiicient  to  discharge 
surety,  453 

Precedent  of  a  declaration  on 
guardian's  bond,.  452 

GUARDIAN  ^D  LITEM. 


See  title  Infant. 


H 


H.3BEMS  CORPUS. 

1.  Habeas  corpus  cum  causa. 

Form  of  the  writ,  40 

Return,  40 

Order  upon  return,  40 

2.  Habeas  corpus  ad  testificandum. 
Order  awarding  this  writ,  52 
Form  of  the  writ,  52 
Witness  remanded  afler  giving 

testimony,  52 


INDEX. 


619 


3.  Habeas  corpus  ad  subjiciejidum. 
Petition  for  writ  with   affidavit 
subjoined,  356 

Order  awarding  the  writ,  357 

Form  of  the  writ,  357 

Return  annexed  to  writ,  357 

Endorsement  upon  writ,  358 

Return  made  to  writ,  and  case 

continued  to  another  day,  358 

Case   heard   and  petitioner  dis- 
charged from  custody,  .       358 
Entry  of  return  made   to  writ; 
case   heard ;   and   prisoner  dis- 
charged, 358,  9 

HANDWRITING. 

Affidavit  denying  execution  of 
writing,  on  which  action  is 
brought,  60 

HEIR. 

\.  Action  by  an  heir. 

Mode  of  declaring  in  such  ac- 
tion, 417.  476 

What  is  a  sufficient  averment  of 
the  plaintiff  being  heir,         476.  487 

Declaration  in  debt  by  an  heir  on 
a  bond  to  his  ancestor  condition- 
ed for  the  quiet  enjoyment  of 
lands,  assigning  a  breach  since 
the  ancestor's  death,  476 

2.  Action  against  heir  on  ancestor's 

bond. 

Less  particularity  required  in  set- 
ting forth  the  descent  where  an 
heir  is  sued,  than  when  he  sues,  417 

Mode  of  declaring  in  action  a- 
gainst  an  heir,  417.  476 

Heir  should  be  charged  in  the  de- 
bet  and  detinet,  417 

Declaration  in  debt  by  the  admi- 
nistrator of  a  surviving  partner 
against  heirs  on  a  bond  of  their 
ancestor,  417 

Heir  acknowledges  the  action 
and  shews  the  lands  which  he 
has  by  descent,  and  judgment 
entered  to  be  levied  of  those 
lands,  101 

Plea  of  riens  per  discent,  83 

Verdict  upon  replication  under 
the  statute  to  such  plea,  127 

After  judgment  against  heir,  writ 
of  extendi  facias,  237 

3.  Scire  facias   against  heir    upon 

judgment  against  ancestor  for 
money. 

Form  of  the  writ  against  heirs 
and  terretenants,  to  have  execu- 
tion of  the  lands,  248 

After  award  of  execution  on  such 
writ,  form  of  the  elegit,  271 


Form  or  scire  facias  against  heirs 
and  terretenants,  to  ^ve  execu- 
tion of  the  lands,  upon  a  judg- 
ment of  circuit  court  affirming 
judgment  of  court  below,  ren- 
dered on  a  scire  facias,  391 

Award  of  execution  upon  such 
scire  facias,  391 

4.  Revival  against  heir  of  action  of 

ejectment. 
Award  of  scire  facias,  176 

Form  of  the  writ,  176 

Upon  return  of  writ,  heirs  made 

parties,  176 

5.  Revival  of  writ  of  right,  for  or 

against  heir. 
Aw&id  of  scire  facias,  188 

Form  of  the  writ,  188 

Upon  return  of  writ,  heirs  made 

parties,  189 

6.  Revival  against  heir  of  judgment 

in  ejectment. 

Form  of  the  writ  of  scire  facias 
in  such  case,  247 

HIRE. 

Declaration  in  covenant  for  hire 
agreed  to  be  paid  for  a  slave  and 
the  value  of  clothing  which  the 
hirer  was  to  furnish,  492 

Declaration  in  assumpsit  on  a 
promise  to  pay  the  year's  hire  of 
a  slave  and  furnish  him  with 
clothing,  531 

Declaration  in  assumpsit  on  a 
promise  to  pay  monthly  hire  for 
a  slave,:  533 

How  to  declare  on  a  writing  pro- 
mising to  furnish  the'  bond  of 
another  person  for  the  hire  of  a 
slave,  533 

HUSBAND  AND  WIFE. 

Concerning  action  on  promise  to 
marry  or  to  pay  money  in  con- 
sideration of  marriage,  or  con- 
cerning a  change  of  parties  in 
con.sequence  of  a  marriage 
pending  suit  or  after  judgment, 
see  title  Marriage. 

What  facts  must  be  stated  in 
plea  that  plaintiffs,  suing  as 
husband  and  wife,  never  were 
married,  17 

Scire  facias,  where  afl^r  judgment 
for  husband  and  wife,  husband  is 
survived  by  his  wife,  who  dies 
before  execution,  250 

Declaration  in  debt  against  hus- 
band and  wife  on  a  bond  given 
by  her  before  marriage,'  412 


620 


INDEX. 


When  trespass  is  maintainable 
against  husband  and  wife  joint- 
ly,  555 

Of  the  action  for  criminal  con- 
versation with  plaintiff's  wife,     592 

Whether  action  lies  for  act  done 
after  agreement  by  husband 
and  wife  to  live  separately,  592 

Precedent  of  a  declaration  for 
crim.  con.  593 


IDIOTS  AND  LUNATICS. 
See  Committer. 

IMMATERIAL  ISSUE.     , 

Judgment  for  plaintiff,  notwith- 
standing failure  to  respond  to 
one  of  the  issues ;  it  being  im- 
material, 136 

Judgment  for  plaintiff,  notwith- 
standing verdict  for  defendant 
on  one  of  the  issues;  it  being 
immaterial,  136 

IMPROVEMENTS. 

Where  land  is  recovered  west  of 
the  Mleghany,  and  defendant 
seeks  to  get  the  value  of  his 
i«iprovements,  judgment  sus- 
pended till  allegations  can  be 
enquired  into,  181 

Jury  sworn  to  ascertain  the  ad- 
ditional value  given  to  the  land 
by  the  improvements;  and  ver- 
dict found,  181 

INDEBITATUS. 

Form  in  debt  of  common  indebi- 
tatus count,  447 
Forms  in  assumpsit,            550  to  654 
Whether  indebitatus  assumpsit 
will  lie  for  the  price  of  a  tract 
of  land,  549 

INDEMNITY. 

Form  of  an  indemnifying  bond 
under  the  statute,  214 

Declaration  in  debt  on  such 
bond,  469 

Of  a  bond  of  indemnity  at  com- 
mon law,  471 

When  action  on  such  bond  may 
be  maintained,  471 

•Of  instrument  of  indemnity  not 
■under  seal,  541 

What  facts  authorize  a  recovery 
on  such  instrument,  541 


Declaration  in  assumpsit  by  an 
officer  who  took  property  under 
execution  and  sold  the  same 
upon  an  agreement  that  he 
should  be  indemnified,  536 

See  also  titles  Fieri  facias  and 
•Scire  facias. 

INFANT. 

Declaration  filed  against  an  in- 
fant, 15 

Guardian  assigned  to  defend  an 
infant,  15 

Appearance  of  infant  defendant 
by  guardian,  15 

After  infant  attains  his  age,  ap- 
pearance by  attorney,  15 

Response  in  assumpsit  to  plea  of 
infancy,  130 

INFORMATION. 

Information  for  intrusion,  328 

INJUNCTION. 

Fi.  fa.  after  dissolution  of  an  in- 
junction to  a  judgment  for  mo- 
ney, 275 

Eatry  where,  after  execution  of 
forthcoming  bond,  an  injunc- 
tion was  obtained,  and  the 
same  being  dissolved,  dama- 
ges are  included  in  the  judg- 
ment, 275 

Pending  injunction  to  judgment 
in  ejectment,  term  of  demise 
having  expired,-  rule  to  enlarge 
the  same,  181 

Rule  to  enlarge  term  which  had 
expired  pending  injunction, 
made  absolute  and  writ  of  pos- 
session awarded,  182 

INJUNCTION  BOND. 

Under  what  circumstances  there 
may  be  a  recovery  on  an  in- 
junction bond,  473 

What  may  be  recovered  there- 
on, 473 

Declaration  in  debt  on  a  bond 
given  upon  obtaining  an  in- 
junction to  a  judgment,  473 

Declaration  on  a  bond  given  up- 
on obtaining  an  injunction  to  a 
sale  under  execution,  474 

INSIMUL  COMPUTASSENT. 

Form  in  debt  of  this  count,  -447 

Form  in  assumpsit,  551 


INDEX. 


621 


What  may  be  recovered  there- 
under, 553,  4 

INSOLVENT. 

Warrant  of  justice  directing  jai- 
lor to  bring  insolvent  debtor 
before  him  or  some  other  jus- 
tice, 229 

Notice  that  person  intends  to 
take  the  oath  of  an  insolvent 
debtor,  229 

Schedule  of  insolvent,  229 

List  of  executions,  230 

Oath  of  insolvent  debtor,  230 

Conveyance  of  the  real  estate 
mentioned  in  the  schedule,  230 

Warrant    for    insolvent's    dis- 
charge, 231 

Return  of  ca.  sa.  where  debtor  is 
discharged  by  taking  oath  of  in- 
solvency, 231 

Entry  where  oath  of  insolvency 
is  taken  in  court,  232 

Summons  against  a  person  sta- 
ted to  be  indebted  to,  or  to  have 
estate  of  insolvent,  232 

Judgment  against  such  person,     233 

New  summons  awarded  against 
such  person,  233 

Defendant  appeared  according  to 
summons,  and  summons  dis- 
missed, 233 

Ctu  so,  directed  to  issue  against 
a  person  who  has  been  dis- 
charged as  an  insolvent  debtor,  234 

Fi.  fa.  awarded  against  the  goods 
acquired  by  a  person  after  taking 
the  oath  of  insolvency,  234 

Scire  facias  to  have  execution 
against  property  acquired  by 
defendant  after  taking  oath  of 
insolvency,  253 

Notice  of  motion  against  officer 
for  not  returning  the  schedule 
of  an  insolvent  debtor,  291 

Notice  of  motion  against  officer 
for  not  returning  account  of 
sales  of  insolvent's  effects,  291 

Notice  of  motion  against  officer 
for  money  arising  from  the  sale 
of  an  insolvent's  estate,  294 

Judgment  on  such  motion^  295 

Notice  of  motion  against  officer 
for  money  or  goods  received 
under  summons  against  the 
garnishee  of  an  insolvent,  295 

INTEREST. 

Verdict  allowing  interest  and 
fixing  period  at  which  it  shall 
commence,  127 


Verdict  where  rate  of  interest  is 
governed  by  the  laws  of  ano- 
ther state,  127 

INTE  RRO  GATORIES . 

See  Discovery,  and  57,  8 

INTRUSION. 
Information  for  intrusion,  323 

J 

JAILOR  AND  JAIL  FEES. 

Jailor's  notice  to  creditor  or  his 
agent,  of  debtor's  imprison- 
ment, 223 

Notice    of   motion    by    jailor 
against  creditor  for  jail  fees,        284 

Another  notice  of  motion  for  jail 
fees  against  creditor  who  re- 
sides out  of  the  county  and  has 
no  agent  in  it,  285 

Notice  of  motion  by  creditor 
against  debtor  for  jail  fees,  286 

Return  of  ca.  sa.  where  debtor  is 
discharged  for  non-payment  of 
jail  fees,  234 

Scire  facias  to  have  execution 
against  property  of  debtor  dis- 
charged on  account  of  the  cre- 
ditor's failure  to  pay  the  jail 
fees,  254 

See  also  title  Sheriff. 

JOINDER  ON  DEMURRER. 
See  Demurrer. 

JOINDER  OF  CAUSES  OF  ACTION. 

What  counts  may  be  joined,  405 

What  may  be  joined  in  same 
count,  406 

JOINT  ACTION. 

Entry  of  judgment  in  the  office 
when  it  becomes  final  against 
one  of  several  defendants,  95 

In  action  on  contract  against  two 
defendants,  one  of  whom  is  dis- 
charged, judgment  against  the 
other,  145 

Judgment  in  an  action  of  tres- 
pass, assault  or  false  imprison- 
ment against  several,  one  of 
whom  is  found  guilty  and  ano- 
ther not,  146 

JOINT  BOND. 

Declaration  in  debt  on  a  joint 
bond  against  the  surviving  obli- 
gor, 413 


622 


INDEX. 


Declaration  in  debt  on  a  joint 
bond  against  the  representative 
of  an  obligor  who  was  survived 
by  his  co-obligor,  414 

JOINT  TENANCY. 

Plea  of  joint  tenancy,  186 

Judgment  where   plea  of  joint 

tenancy  is  sustained,  186 

Judgment   where    plea  of  joint 

tenancy  is  disproved,  186 

JOINTURE. 
Plea  of  jointure  in  lieu  of  dower,  192 

JUDGE. 

Summons  instituting  action  a- 
gainst  a  judge  of  the  general 
court,  4 

Against  a  judge  of  the  court  of 
appeals,  5 

JUDGMENT. 

1 .  Ore  confession. 

See  title  Confession  of  Judgment. 

2.  By  default. 

See  Ofjice  Judgment,  and  95 

3.  Ore  demurrer. 

See  Demurrer,  and  106  to  114 

4.  On  verdict,  136  to  150 

5.  To  action  for  original  cause,  plea 

of  former  judgment. 
"When    former  judgment,    upon 
same  matter,  may  be  pleaded  in 
bar,  78 

6.  Of  actions  upon  judgments,  and 

declarations  in  such  actions. 

Debt  maintainable  on  a  judgment 
the  record  of  which  has  been 
destroyed,  447 

Debt  maintainable  by  an  adminis- 
trator de  bonis  non  upon  a  judg- 
ment obtained  by  an  executor,     447 

How  to  declare  in  debt  on  a  judg- 
ment for  a  penalty,  447 

In  debt  on  a  judgment,  how  much 
of  the  record  must  be  set  forth,  447 

Where  the  judgment  is  obtained 
by  an  executor,  how  it  must  be 
described,  447 

Precedent  of  a  declaration  in  debt 
on  a  judgment  against  an  exe- 
cutor suggesting  a  devastavit,      447 

Whether  action  can  be  maintain- 
ed on  a  judgment  in  detinue,        562 

7.  Pleas  to  actions  upon  judgments. 
In  action  upon  judgment  in  ano- 
ther state  entered  upon  confes- 
sion under  power  of  attorney, 
plea  denying  the  execution  of 


the  power  of  attorney  and  the 
validity  of  the  judgment,  62 

Plea  of  no  such  record  to  action 
of  debt  on  judgment  of  another 
state,  63 

Pleas  under  statutes  of  limita- 
tion, 79.  80.  and  266,  7 

JURISDICTION. 

Strictness  required  in  pleas  to  the 
jurisdiction,  16 
Not  necessary  in  any  case  to  de- 
mur thereto  specially,  16 
Plea  bad  if  pleaded  in  person,  16 
Must   not    conclude   quod    billa 

cassetur,  16 
Form  of  a  plea  to  the  jurisdiction, 

15. 16 

Demurrer  to  such  plea,  22 

Replication  to  such  plea,  22 

Other  replications,  23 

JURY. 

Order  directing  jurors  to  be  sum- 
moned for  a  subsequent  day,         116 

Sheriff  being  interested,  order  di- 
recting coroner  to  summon  jury,  116 

Sheriff  and  coroners  being  inte- 
rested, order  appointing  a  person 
to  summon  a  jury,  116 

Jury  sworn  and  having  partly 
heard  the  evidence  adjourned,     122 

Jury  having  further  heard  the 
evidence  again  adjourned,  122 

Jury  having  fully  heard  the  evi- 
dence, sent  out,  and  not  agree  j 
ing,  juror  withdrawn  and  cause 
continued,  122 

Jury  having  fully  heard  the  evi- 
dence, sent  out,  and  not  agree- 
ing, adjourned,  123 

Jury  who  had  once  retired,  ap- 
peared after  adjournment,  and 
after  again  retiring,  returned  a 
verdict,  123 

Entry  where  one  of  the  jury, 
instead  of  taking  an  oath,  makes 
a  solemn  affirmation,  123 

See  also  title  Unlawful  Entry  or 
Detainer. 

JUSTICE  OF  THE  PEACE. 

Verdict  shewing  that  a  justice  of 
the  peace  had  cognizance,  plain- 
tiff non-suited,  148 

Ca.  sa.  after  return  of  no  effects 
on  an  execution  issued  by  a  jus- 
tice of  the  peace,  '       223 

Concerning  appeals  from  judg- 
ments of  justices  of  the  peace, 
see  title  Jippeal. 


INDEX. 


623 


LEGACY. 

Under  what  circumstances  an  ac- 
tion will  lie  on  behalf  of  a  lega- 
tee upon  a  promise  of  the  exe- 
cutor to  pay  his  legacy,  and  how 
the  action  must  be  brought,     541, 2 

Of  the  action  by  a  legatee  to  re- 
cover a  slave  or  other  property 
bequeathed  to  him,  561 

Assent  of  executor  to  legacy  ne- 
cessary, 561 

Assent  valid  though  testator  had 
not  possession  wlien  he  died,       561 

Assent  to  first  taker  is  an  assent 
to  remainderman,  561 

LIMITATION  OF  ACTIONS. 

See  title  Statute  of  Limitations. 

LITERARY  FUND. 

Notice  of  motion  by  the  president 
and  directors  of  the  literary  fund 
against  treasurer  of  school  com- 
missioners and  his  sureties,  284 

LOST  NOTES. 

See  Trover,  and  565, 6 

LUNATIC. 

See  Committee. 

M 

MALICIOUS  PROSECUTION. 

Of  the  remedy  for  proceeding 
under  process  of  law,  malicious- 
ly and  without  probable  cause,    590 

Where  the  process  has  been  an 
attachment  against  plaintiff's 
property,  590 

Where  defendant  has  prosecuted 
the  plaintiff,  or  conspired  or  ad- 
vised a  prosecution,  590 

Both  malice  and  want  of  proba- 
ble cause  must  be  averred,  591 

Whether  it  must  be  alleged  that 
the  proceeding  complained  of  is 
determined,  592 

Form  of  declaration  for  advising 
and  inducing  malicious  prosecu- 
tion, 592 

MJiNDAMVS. 

Necessary  to  have  a  rule  to  shew 
cause  why  mandamus  should 
not  issue,  341 

Entry  of  rule,  341 

Rule  made  absolute,  and  condi- 
tional mandamiis  awarded,  to  do 


the  specific  thing,  or  shew  cause 

to  the  contrary,  342 

Form  of  mandamus  to  a  public 
officer  to  obey  a  statute,  or  shew 
cause  to  the  contrary,  342 

Form  of  mandamus  to  justices  of 
a  county  court,  to  admit  a  deed 
to  record,  or  shew  cause  to  the 
contrary,  342 

Opinions  in  JVcm  York,  concern- 
ing maTwZamw*  to  judges  of court 
below,  to  seal  bill  of  exceptions, 
or  shew  why  it  is  not  done,      343, 4 

Form  of  mandamus  issued  in 
^'^ew  York,  343,  4 

Mandamus  issued,  in  Virginia, 
to  justices  of  county  court,  to 
affix  their  seals  to  bill  of  excep- 
tions alleged  to  contain  the 
truth,  si  ita  est,  345 

Service  of  mandamus,  and  return 
thereof,  345 

Return  of  mundamus  being  in- 
sufficient, peremptory  manda- 
mus awarded,  346 

MARRIAGE. 

Action  may  be  maintained  for  a 
breach  of  promise  to  marry,         520 

Infant  may  sue  adult  for  breach 
of  such  promise,  520 

Declaration  for  breach  of  such 
promise,  520 

What  may  be  pleaded  by  the  de- 
fendant, 521 

In  assumpsit  for  money  agreed 
to  be  paid  in  consideration  of 
marriage,  what  must  be  averred 
in  the  declaration,  549 

Entry  where  fcm.e  plaintiff  mar- 
ries pending  suit,  39 

Scire  facias  where  feme  plaintiff 
marries  after  judgment,  249 

Scire  facias  where  feme  defen- 
dant marries  after  judgment,       250 

Scire  facias  where  plaintiff  mar- 
ries aft^r  judgment  and  is  sur- 
vived by  her  husband  who  dies 
before  execution,  250 

Scire  facias  where  after  judg- 
ment plaintiff  dies  and  his  ad- 
ministratrix marries,  250 

MARSHAL. 

Declaration  in  debt  by  a  marshal 
or  sheriff  on  the  bond  of  a  de- 
puty who  is  in  default,  465 

MEMORANDUM. 

Attorney's  memorandum  for  ca- 
pias, 1 


624 


INDEX. 


MERCHANTS'  ACCOUNTS. 

To  plea  that  action  was  not  com- 
menced in  time,  special  replica- 
tion to  one  count,  that  account 
concerns  the  trade  of  merchan- 
dize between  merchant  and  mer- 
chant, 85 

MESNE  PROFITS. 
See  Ejectment. 

MILL. 

Of  the  remedy  against  a  defen- 
dant raising  a  mill  without  au- 
thority, whereby  a  mill  of  the 
plaintiff  was  rendered  useless 
and  the  health  of  his  family  in- 
jured, 577 

Precedent  of  a  declaration  in 
such  case,  577 

MISE. 
Entry  of  the  mise  being  joined,     187 

MISJOINDER  OF  CAUSES  OF 
ACTION. 

What  counts  may  be  joined,         405 
What  may   be   joined   in   same 
count,  406 

Opinion  upon  demurrer  to  a  de- 
claration, in  which  there  is  a 
misjoinder  of  counts,  106 

MONEY  COUNTS. 

Forms  in  debt  of  the  counts  for 
money  lent,  money  paid,  and 
money  received,  447 

Forms  in  assumpsit  of  those 
counts,  550.  551 

What  may  be  recovered  thereun- 
der, 551  to  554 

MOJVSTRAJVS  DE  DROIT. 
See  Escheat. 

MORTGAGE. 

Notice  to  plaintiff  who  claims 
under  a  mortgage  which  is  satis- 
fied, 177 

MOTION. 

Continuance  of  motion,  276 

J^on  est  factum  pleaded  to  mo- 
tion ;  issue  joined  ;  verdict  for 
plaintiff  and  judgment,  276 

Motion  heard  and  continued  for 
court  to  consider  of  its  judg- 
ment, 277 


After  time  taken  to  consider, 
judgment  for  defendant  upon 
the  merits,  277 

After  time  taken  to  consider, 
judgment  for  plaintiff  upon  the 
merits,  277 

Entry  of  exceptions  to  judgment 
on  motion,  277 

Execution  upon  judgment  a- 
gainst  principal  and  sureties 
being  quashed  on  motion  of 
sureties,  exceptions  filed  by 
plaintiffs,  242 

Transcript  of  the  record  of  a  mo- 
tion on  which  the  defendant  ap- 
peared, 370 

Judgment  on  motion  reversed  on 
the  merits  and  final  judgment 
entered,  385 

Judgment  obtained  on  motion  by 
sheriff  against  deputy  for  non- 
return of  forthcoming  bond,  no 
bar  to  an  action  on  deputy's 
bond  to  recover  damages  for 
non-return  of  same  bond,  465 

MUTUAL  ASSURANCE  SOCIETY. 

Notice  of  motion  by  the  mutual 
assurance  society  against  a  per- 
son insured,  for  quotas,  283 

N 

NEGLIGENCE. 

Under  what  circumstances  ac- 
tion may  be  maintained  for  loss 
of,  or  injury  to,  a  slave,  occa- 
sioned by  defendant's  negli- 
gence, 566,  7,  8 

Precedent  of  a  declaration  for 
such  neglect  by  the  owner  a- 
gainst  one  to  whom  he  hired  the 
slave,  568,  9 

Action  lies  for  the  owner  of  a 
runaway  slave  against  a  sheriff, 
for  not  furnishing  the  slave, 
while  in  jail,  with  bed-covering 
and  fuel,  569,  70 

Precedent  of  a  declaration  in 
such  a  case,  569,  70 

Action  lies  for  the  owner  of  a 
slave,  received  in  jail,  against 
the  sheriff  for  his  negligence  in 
suffering  the  slave  to  escape,   571, 2 

Case   in  which   declaration    for 

such  negligence  was  held  good,  571 , 2 

NEW  TRIAL. 

Motion  for  new  trial,  and  part  of 
damages  being  released,  motion 
overruled,  133 

Motion  for  new  trial  granted,        134 


INDEX. 


625 


Where  some  defendants  are  con- 
victed and  others  acquitted, 
new  trial  granted  the  convicted 
defendants,  134 

Where  damages  are  assessed  a- 
gainst  one  defendant  who  made 
default,  and  the  others,  having 
pleaded,  are  acquitted,  new  trial 
granted  as  to  one  of  the  acquit- 
ted defendants,  134 

Motion  for  new  trial  being  over- 
ruled, opinion  of  court  except- 
ed to,  135 

Motion  for  new  trial  being  grant- 
ed, opinion  of  court  except- 
ed to,  135 

See  also  title  Unlaieful  Entry  or 
Detainer. 

NEW  BREACHES. 

Judgment  for  plaintiff  in  debt  on 
collateral  bond,  which  remains 
as  a  security  for  future  damages,  141 

Judgment  for  plaintiff  in  debt  on 
collateral  bond,  which  remains 
as  a  security  for  future  instal- 
ments, 142 

On  a  judgment  providing  for  fu- 
ture breaches,  scire  facias  set- 
ting forth  such  breaches,  250 

Award  of  execution  upon  scire 
facias  assigning  new  breaches,     263 

On  a  scire  facias  assigning  new 
breaches,  damages  assessed  and 
judgment  for  plaintiff,  268 

NEXT  FRIEND. 

PlaintifTs  next  friend  being  dead, 
another  admitted  to  sue,  15 

NIL  DEBET. 

Plea  of  nil  debet,  60 

Entry  of  plea  of  nil  debet  and  of 

office  judgment  being  set  aside,  87,8 
Entry  at  the  time  of  pleading  nil 
debet,  of  affidavit  as  to  signature 
to  writing,  88 

Verdict  upon  plea,  of  nil  debet,  125.128 
Verdict  and  judgment  for  plain- 
tiff in  debt  qui  tarn  on  plea  of 
nil  debet,  138 

Verdict  and  judgment  in  debt 
qui  tain,  for  plaintiff  as  to  part, 
and  for  defendant  as  to  residue,  138 

NO  ASSETS. 

Plea  of  no  assets,  80.  81 

Plea  of  no  assets  printer,  81 

Verdict  for  plaintiff  on  plea  of 
no  assets,  126,  7 

79 


J^OJV  ASSUMPSIT. 

Plea  of  non  assumpsit  by  a  defen- 
dant sued  in  his  own  right,  59 

Plea  of  non  assumpsit  by  an  exe- 
cutor or  administrator,  59 

Plea  of  non  assumpsit  by  a  sur- . 
viving  partner,  59 

Entry  of  plea  of  non  assumpsit, 
and  of  ofEce  judgment  being 
set  aside,  87, 8 

Entry  at  the  time  of  pleading  non 
assumpsit,  of  affidavit  as  to  sig- 
nature to  writing,  88 

Verdict  on  plea  of  non  assumpsit,  130 

Verdict  for  defendant,  respond- 
ing to  plea  of  non  assumpsit  as 
to  part  and  tender  as  to  residue,  130 

Verdict  for  defendant  as  to  ten- 
der of  part,  and  for  plaintiff 
upon  plea  of  non  assumpsit,         130 

JVOJV  D^aMMFICATUS. 

Verdict  for  defendant  on  plea  of 
non  damnificatus,  126 

KON  DETmET. 

Plea  of  non  detinet,  64 

Entry  of  plea  of  non  detinet  and 
of  office  judgment  being  set 
aside,  87, 8 

Entry  at  the  time  of  pleading  non 
detinet,  of  affidavit  as  to  signa- 
ture to  writing,  88 

JVOJV  EST  FACTUM. 

Plea  of  non  est  factum  by  one 
sued  as  obligor,  61 

Affidavit  proving  the  same,  61 

Plea  of  non  est  factum  by  an  exe- 
cutor or  administrator  with  affi- 
davit thereto,  61 

Plea  of  7ion  est  factum  by  an  ad- 
ministrator, with  oi/er  of  the 
bond  and  affidavit  that  it  was  de- 
livered as  an  escrow,  61 

Plea  of  non  est  factum  always 
concludes  to  the  country,  62 

In  action  upon  judgment  in  ano- 
ther state,  entered  upon  confes- 
sion under  power  of  attorney, 
plea  denying  the  execution  of 
the  power  of  attorney  and  the 
validity  of  the  judgment,  62 

Entry  of  plea  of  7ion  est  factum 
and  issue  thereon,  88 

Verdict  upon  plea  of  non  est  fac- 
tum, 125 

JVon  est  factum  pleaded  to  a  mo- 
tion ;  issue  joined ;  verdict  for 
plaintiff  and  judgment,  276 


626 


INDEX. 


NONSUIT. 

1.  Ina  common  personal  action. 

At  rules  for  want  of  declaration,     14 
At  rules  for  not  complying  with 

a  rule  for  any  other  purpose,  see 

title  Rule. 
In  court  in  an  ordinary  case,  96 

In  court  after  jury  are  sworn,  but 

before  they  retire,  96 

Verdict  shewing  that  a  justice 

of  the  peace  had   cognizance, 

plaintiff  nonsuited,  148 

2.  In  replevin. 

Plaintiff  nonsuited  for  want  of 
declaration,  158 

Plaintiff  nonsuited  for  want  of 
replication,  159 

Plaintiff  nonsuited  for  want  of 
plea  to  avowry,  160 

After  nonsuit,  writ  of  enquiry 
executed  and  judgment  there- 
upon, 162 


A"OJV  TEJVUIT. 
Plea  of  non  tenuit. 


158 


Plea  of  non  tenure,  185 

Judgment  where  this  plea  is  sus- 
tained as  to  parcel  of  the  land,     186 

NO  SUCH  RECORD. 

Plea  of  no  such  record  to  debt 
on  judgment  of  another  state  in 
the  Union,  63 

How  the  plea  should  conclude  in 
such  case,  63, 4 

Entry  of  plea  of  no  such  record 
and  general  replication  thereto,  265 

J  udgment  on  plea  of  no  such  re- 
cord, where  that  is  the  only  plea,  269 

Judgment  for  plaintiff,  where,  be- 
sides no  such  record,  there  is  a 
second  plea,  269 

Transcript  of  the  record  of  an 
action  on  a  judgment  wherein 
profert  was  made  of  the  record  of 
the  judgment  and  no  such  re- 
cord pleaded,  363 

NOT  GUILTY. 

Plea  of  not  guilty  in  trespass  or 
case,  64 

Entry  of  plea  of  not  guilty  and 
of  office  judgment  being  set 
aside,  87, 8 

Verdict  upon  plea  of  not  guilty, 

^      ^  ^    125.126 


NOTHING  IN  ARREAR. 
Plea  of  nothing  in  arrear,  158 

NOTICE. 

1 .  Before  action  brought. 

Notice  of  dishonour  of  bill  or 
note,  118 

Notice  to  tenant  to  quit,  171 

2.  Pending  action. 

By  defendant  that  he  will  con- 
fess judgment  in  the  office,  6 

That  security  is  required  for 
costs,  27 

Of  application  for  commission  to 
take  depositions  in  a  foreign 
country,  47 

Of  time  and  place  of  taking  de- 
positions, 48 

Of  time  and  place  of  taking  de- 
positions, to  non-resident  party,     49 

In  ejectment,  172,  3 

To  plaintiff,  who  claims  under  a 
mortgage  or  trust  which  is  satis- 
fied, 177,  8 

3.  Of  motion  for  writ  of  prohibi- 

tion, 347 

4.  After  judgment,  where  defendant 

is  imprisoned. 

Of  surrender  by  bail,  31 

Of  motion  for  exoneretur,  32 

From  jailor  to  creditor  of  debtor's 

imprisonment,  223 

Of  escape  from  prison  bounds,     228 
That  person  intends  to  take  the 

oath  of  insolvency,  229 

5.  Notices  of  motions  for  judgment 

and  award  of  execution,   274  to  301 

6.  Notices  of  applications  to  amend 

judgments,  333. 335 


O 


OATH  OR  AFFIRMATION. 

Solemn  affirmation,  117 

Oath  of  jury  to  try  an  issue,  116 

Oath  of  jury  to  enquire  of  da- 
mages, 116 
Oath  of  jury  on  a  caveat,  169 
Oath  of  jury  in  a  writ  of  right,  189 
Oath  of  a  witness  on  the  voir 
dire,  116 
Oath  of  a  witness  in  chief,  117 
Oath  of  an  insolvent  debtor,         230 

OFFICE  JUDGMENT. 

Office  judgment  set  aside  by 
pleading  to  issue,  87.  167 

Entry  of  judgment  in  the  office 
when  it  becomes  final,  95 


INDEX. 


687 


Where  goods  hare  been  attached, 
order  accompanying  judgment,     95 

Entry  of  judgment  in  the  o£5ce, 
when  it  becomes  final  against 
one  of  several  defendants,  95 

Entry  of  office  jadgment  on  a 
scire  facias,  bemg  set  aside  by 
plea  of  payment,  267 

Entry  of  j  udgment  in  the  office 
upon  a  scire  facias  when  it  be- 
comes final,  268 

Transcript  of  the  record  in  a  ease 
wherein  final  judgment  has 
been  entered  in  the  office,  362 

Jadgment  by  default  reversed  for 
defect  in  declaration ;  and  writ 
being  defective  also,  final  judg- 
ment entered,  382 

Jadgment  by  default  reversed  for 
defect  in  declaration  ;  and  writ 
bctag  correct,  proceedings  sub- 
M^nent  to  writ  set  aside,  and 
cause  remanded,  382 

OFFICIAL  BOND. 

Of  the  official  bond  of  any  exe- 
cutor, administrator,  guardian, 
committee,  curator  or  other  offi- 
cer, 449 

What  must  be  shewn  in  the  de- 
claration on  such  a  bond,  452 

What  must  be  shewn  in  the  de- 
claration on  the  bond  of  an  offi- 
cer of  a  banking  company,  or 
other  corporation,  conditioned 
to  perform  the  duties  of  his  office,  478 

ORDER  OF  PUBLICATION. 

See  Publication. 

OVERSEERS  OF  THE  POOR. 

Verdict  and  jadgment  for  over- 
seers of  poor,  in  debt  on  a  penal 
law,  139 

Notice  of  motion  by  overseers  of 
the  poor  against  a  predecessor  in 
office,  286 

OYER. 

Entry  of  oyer  of  writ,  21 

In  relation  to  oyer  of  the  instru- 
ment declared  on,  24 
Oyer   of   obligation   and   condi- 
tion,                               24.  25.  61.  75 
Entry  thereof,  25 
Oyer  of  record,                                  866 
Transcript  of  the   record  of  an 
action  on  a  bond  made  part  of 
the  record  by  oyer,                        363 


PARTITION. 
Snmmons  in  partition,  20.5 

Judgment  confessed,  205 

Writ  de  partitione  facientUt,  205 

Return  by  sheriff  and  partition 
established,  206 

PARTNERS. 

Declaration  by  partners  upon  a 
bond  or  note,  must  shew  that 
the  same  was  made  to  them  as 
such,  410 

Form  of  a  declaration  by  the  ad- 
ministrator of  a  surviving  part- 
ner on  a  bond,  417 

Form  of  a  declaration  by  an  ad- 
ministrator de  bonis  non  against 
two  partners,  upon  a  penal  bill 
sealed  by  one  partner,  for  him- 
self and  his  co-partner,  by  the 
authority  and  in  the  presence  of 
the  co-partner,  415 

When  plaintiffs  suing  as  part- 
ners, need  not  prove  partner- 
ship, 60 

Plea  in  abatement  to  the  person 
of  the  defendant  that  the  con- 
tract was  made  by  him  and  his 
partner  jointly,  and  not  by  the 
defendant  separately,  18 

When  the  issue  on  such  plea 
will  be  found  against  the  defen- 
dant, 19 

PAYMENT. 

In  debt  on  bond,  plea  of  payment 
before  action  brought,  of  princi- 
pal and  interest  mentioned  in 
condition,  76 

Entry  of  plea  in  writing  being 
filed  alleging  payment,  and  of 
replication  thereto,  and  issue,        89 

Entry  of  replication  to  plea  of 
payment  in  action  by  adminis- 
trator of  a  Bxuviving  partner, 
and  issue  joined,  89.  90 

Entry  of  replication  to  plea  of 
payment  where  the  condition  is 
nut  set  out  in  the  declaration, 
and  oyer  is  not  prayed  }  and 
joinder  of  issue,  90 

Verdict  for  plaintiff  in  debt  on 
•ingle  bill  responding  to  plea  of 
payment,  129 

Judigment  in  circuit  court  for  de- 
fendant, in  debt  on  single  bi"  '^^ 
promissory  note   where  v< 
IS  for  less  than  $50,  in  c  >  i^ 
quence  of  pajmenUt,  147 


62S 


INDEX. 


Upon  scire  facias  on  a  judgment, 
entry  of  plea  of  payment,  with 
general  replication  and  issue ; 
and  office  judgment  set  aside,     267 

PAYMENT  INTO  COURT. 

Principal  and  interest  brought 
into  court,  and  judgment  enter- 
ed only  for  costs,  97 

PENAL  BILL. 

Declaration  in  debt  on  a  penal 
bill,  411 

Verdict  for  plaintiff  in  debt  on  a 
penal  obligation,  128 

Judgment  for  plaintiff  thereon,     140 

Judo-ment  for  plaintiff  in  debt 
on  penal  obligation  for  sterling 
money,  141 

PENAL  LAW. 

Verdict  and  judgment  for  over- 
seers of  poor,  in  debt  on  a  pe- 
nal law,  139 

PHYSICIAN. 

Remedy  of  a  physician  who  at- 
tends an  apprentice,  533 

Declaration  in  assumpsit  for  ser- 
vices rendered  as  a  physician,      533 

PLEADING. 

Fimdamental  rule,  59 

Entry  of  agreement  to  prevent 
special  pleading,  90 

PLEAS. 

l.To  the  jurisdiction.     See  title 

Jurisdiction,  and  15 

2.  In  abatement.     See  title  Ahate- 

ment,  and  16  to  20 

3.  In  bar. 

Rules  as  to  pleas  in  bar  gene- 
rally, 59 

As  to  pleas  concluding  to  the 
country,  59. 64, 5 

Concerning  the  general  issues, 
see  under  the  appropriate  heads, 
such  as  JVon  assumpsit,  JVil  de- 
bet, JVon  est  factum,  Non  deti- 
net.  Not  guilty  and  JVb  sv^h  re- 
cord. 

Course  for  plaintiff  when  plea 
concludes  to  the  country,  64,  5 

As  to  special  pleas,  65 

How  they  should  conclude,  65 

Whether  wrong  conclusion  is 
ground  of  demurrer,  65,  6 

Course  for  plaintiff  when  plea 
concludes  with  a  verification,  65.  84 


Entry  of  plea  filed,  demurrer 
thereto,  and  joinder,  90 

Additional  plea  offered  and  ob- 
jected to,  but  allowed  to  be 
filed,  92 

Additional  plea  rejected,  because 
delayed  too  long,  92 

Additional  plea  rejected,  because 
the  matter  thereof  is  already  in 
issue,  93 

Additional  pleas  rejected,  and  opi- 
nion of  court  excepted  to,  93 

Improper  plea  set  aside,  93 

Sixteen  pleas  filed;  demurrers 
to  some,  and  issues  in  fact  upon 
others,  113 

Defendant  in  last  case  tendered 
two  other  pleas  which  were  re- 
jected, 113 

Four  pleas  tendered,  but  first, 
third  and  fourth  only  received ; 
replication  to  first  and  fourth, 
and  issues ;  replication  also  to 
third,  rejoinder  thereto,  and  de- 
murrer to  rejoinder;  judgment 
for  plaintiff  on  demurrer ;  and 
verdict  for  him  on  other  issues,  114 

Concerning  pleas  under  act  of 
April  16.  1831,  see  title  Fraud, 
and  91.92 

PLEJVE  ADMimSTRJlVIT. 

Concerning  this  plea,  80 

PLURIES  CAPIAS. 

Award  of  pluries  capias^  10 

Pluries  writ,  10 

POINT  RESERVED. 

Verdict  for  plaintiff  subject  to 
opinion  on  a  point  reserved,         133 

Verdict  reserving  point  set  aside 
and  venire  de  novo  awarded,         133 

Judgment  upon  points  reserved,   150 

POOR  RATES. 

Notice  of  motion  against  sheriff 
and  sureties  for  poor  rates  col- 


lected, 


287 


POSSESSION. 


Writ  of  possession  after  judg- 
ment for  plaintiff  in  eject- 
ment, 240 

Writ  of  possession  after  judg- 
ment for  plaintiff  upon  com- 
plaint of  unlawful  entry  or  de- 
tainer, 242 


INDEX. 


629 


POWER  OF  ATTORNEY. 

Power  of  attorney  for  confessing 
judgment,  100 

Entry  of  judgment  confessed  un- 
der a  power  of  attorney,  101 

Authentication  entitling  a  power 
of  attorney  from  another  state 
to  be  received  as  evidence  in 
Virginia,  118 

PRJECIPE  QUOD  RED  DAT. 

Writ  of  prcBcipe  quod  reddat,         118 

PRIVILEGED  PERSON. 

Summons  against  a  privileged 
person,  5 

PROCEDENDO  AD  JUDICIUM. 


Form  of  the  writ, 

PROCLAMATION. 


42 


Proclamation  awarded,  12 

Process  of  proclamation,  12 
Sheriff's  return  upon  process  of 

proclamation,  12 


PRO  PERT. 

When  profert  is  unnecessary, 
When  it  should  be  made, 

PROHIBITION. 


418 

498 


Notices  of  motion  for  writ,  with 
affidavit  of  service,  347 

Suggestion  that  controversy  be- 
fore a  justice  involves  the  title 
of  an  assignee  to  a  freehold  es- 
tate of  inheritance  in  an  incor- 
poreal hereditament,  348 

Suggestion  that  proceedings  be- 
fore justice  were  by  four  war- 
rants, for  sums  constituting  to- 
gether but  one  debt,  and  that 
the  debt  exceeds  $  20,  351 

Rule  of  law  on  this  subject,       352,  3 

Suggestion  that  county  court  is 
illegally  exercising  jurisdiction 
by  prohibition,  353 

Form  of  writ  of  prohibition,      354, 5 

PROMISSORY  NOTE. 

Declaration  in  debt  on  a  promis- 
sory note  by  the  payee  against 
the  maker,  409 

Declaration  in  debt  on  two  pro- 
missory notes,  409 


When  debt  can  and  when  it  can- 
not be  maintained  on  a  promis- 
sory note,  payable  in  bank  notes 
or  other  articles  of  fluctuating 
value,  509 

Declaration  in  assumpsit  on  such 
a  note,  509 

Verdict  for  plaintiff  in  debt  up- 
on a  note,  128 

Verdict  for  plaintiff  in  debt  on 
note,  responding  to  plea  of  nil 
debet,  128 

Judgment  for  plaintiff  in  debt  on 
simple  contract,  139 

Judgment  in  circuit  court  for  de- 
fendant in  debt  on  promissory 
note,  where  verdict  is  for  less 
than  |!50,  in  consequence  of 
payments,  147 

PROTEST. 

Concerning  protest  for  non-ac- 
ceptance, 427 

Concerning  protest  for  non-pay- 
ment, 428 

How  far  protest  of  foreign  bill  is 
evidence,  430 

Form  of  protest  of  an  inland  bill 
of  exchange,  118 

Form  of  protest  of  a  foreign  bill 
of  exchange,  118 

Notice  of  dishonour,  115 

Protest  and  affidavit  under  acts 
of  assembly,  119 

PUBLICATION. 

Order  of  publication  upon  a  writ 
of  error  or  supersedeas,  377 

Concerning  publication  of  scire 
facias,  see  Scire  facias,  and  38 

Q 

QUARANTINE. 

Writ  de  quarentina  habenda,  191 

qui  TAM. 

Verdict  and  judgment  for  plain- 
tiff in  debt  qui  tarn,  on  plea  of 
nil  debet,  138 

Verdict  and  judgment  in  debt 
qui  tarn,  for  plaintiff  as  to  part, 
and  for  defendant  as  to  residue,  138 

Fieri  facias  in  debt  qui  tarn,         208 

R 

RECOGNIZANCE. 

Concerning  recognizance  of  spe- 
cial bail,  see  Bail. 


630 


INDEX. 


iSciVe  facias  on  recognizance  to 
keep  the  peace,  260 

Scire  facias  on  recognizance  to 
appear  and  answer  a  felony,         261 

Scire  facias  on  recognizance  of 
witnesses  to  appear  and  give  evi- 
dence, 261 

Where,  upon  recognizance,  scire 
facias  issued  against  two,  and 
both  died,  process  to  revive  a- 
warded  against  representative 
of  last  survivor,  265 

Award  of  execution,  for  the  com- 
monwealth, 263 

Execution  for  the  commonwealth, 
against  the  goods  and  chattels, 
lands  and  tenements,  273 

RECORD. 

Manner  of  transcribing  record,     361 

Forms  in  various  cases, 

362  to  370.  and  393,  4 

Authentication  entitling  record 
of  one  state  to  be  admitted  as 
evidence  in  another,  117, 18 

REFUNDING  BOND. 

When  action  may  be  maintained 
on  a  refunding  bond  given  by 
legatees  or  distributees  to  an  ex- 
ecutor or  administrator,  455 

Plea  that  distribution  has  been 
made  of  estate  and  refunding 
bonds  taken,  83 

REJOINDER. 

Entry  of  general  rejoinder  to  re- 
plication, and  issue,  23 

Entry  of  rejoinder  being  filed  to 
special  replication,  90 

Entry  of  issue  made  up  on  re- 
joinder, 90 

RELATOR. 

Judgment  against  relator,  after 
verdict  for  defendant,  149 

RELEASE. 

Motion  for  new  trial,  and  part  of 
damages  being  released,  motion 
overruled,  133 

The  day  after  the  judgment,  par- 
cel of  the  damages  released,         150 

Excess  in  judgment  released  by 
plaintiff  at  a  subsequent  term, 
to  cure  error,  336 

Excess  in  judgment  released  in 
vacation  by  plaintiff,  by  deed 
under  hand  and  seal,  336 


REMOVAL  OF  CAUSES. 

Order  removing  cause  in  conse- 
quence of  judge's  situation,  43 
Petition  for  removal  of  cause  from 
state  court  to  court  of  United 
States,  43 
Bond  given  upon  such  removal,      43 
Order  for  such  removal,  43 
See    titles    Habeas   corpus   cum 
causa,  Certiorari  and  Venue. 

RENT. 

Compensation  for  the  use  of  land 
and  personal  property  together, 
recoverable  as  rent,  445 

Declaration  in  debt  for  such 
rent,  445 

Declaration  in  covenant  by  les- 
sor against  lessee  for  breach  of 
covenant  to  pay  rent  reserved 
by  deed,  490 

When  assumpsit  lies  for  use  and 
occupation,  530 

Declaration  in  assumpsit,  530 

See  also  titles  Distress  for  rent, 
and  Attachment. 

REPLEVIN. 

Bond  given  by  tenant  upon  suing 
out  writ  of  replevin,  152 

Writ  by  the  tenant,  152 

Writ  where  the  property  distrain- 
ed, is  claimed  by  any  other  than 
the  tenant,  153 

Certificate  of  justice  that  he 
swore  two  freeholders  to  value 
the  property  distrained,  153 

Appraisement  of  the  property 
distrained,  153 

Bond  given  by  claimant  of  dis- 
trained property  upon  suing  out 
writ,  154 

Sheriff's  return  upon  writ  sued 
out  by  the  tenant,  154 

Sheriff's  return  upon  writ  sued 
out  by  claimant  of  distrained 
property,  154 

Declaration,  155 

Plea  alleging  property  to  be  in  a 
third  person,  with  a  suggestion 
in  the  nature  of  an  avowry,         155 

Replication  to  last  plea  and  simi- 
liter, 156 

Entry  of  issue  made  up  in  a  coun- 
ty or  corporation  court,  156. 

Another  entry  of  issue  made  up, 
where  the  defendant  avowed,       157 

Avowry  of  distress,  157 

Plea  of  non  tenuit,  158 

Plea  of  nothing  in  arrear,  158 


INDEX. 


631 


Appearance  for  defendant  in  cir- 
cuit court,  and  rule  to  declare,     158 

Plaintiff  in  circuit  court  nonsuit- 
ed at  the  rules  for  want  of  de- 
claration, 158 

Entry  of  declaration  and  condi- 
tional judgment,  at  the  rules  in 
circuit  court,  159 

Conditional  judgment  confirmed 
at  rules  in  a  circuit  court,  159 

Declaration  filed,  appearance  at 
rules  in  circuit  court,  and  rule 
to  plead,  159 

Plea  to  declaration  at  rules  in  cir- 
cuit court,  and  rule  to  reply,         159 

Plaintiff  nonsuited,  at  rules  in 
circuit  court,  for  want  of  repli- 
cation, 159 

Avowry  filed  at  rules  in  circuit 
court,  and  rule  to  plead,  160 

Plaintiff  nonsuited  at  the  suc- 
ceeding rule  day,  160 

Plea  filed  to  avowry  at  rules,  in 
circuit  court,  and  rule  to  reply,  160 

Avowant  failing  to  reply,  judg- 
ment entered  for  plaintiff  at 
succeeding  rule  day,  160 

Verdict  and  judgment  for  plain- 
tiflf,  160 

In  replevin  by  the  tenant,  ver- 
dict for  the  avowant  upon  an  is- 
sue and  judgment  thereupon,      160 

Tenant  being  nonsuit  before  is- 
sue joined,  writ  of  enquiry  exe- 
cuted and  judgment  thereupon,  161 

In  replevin  by  a  claimant  of  the 
property,  verdict  for  defendant 
upon  an  issue,  and  judgment 
thereupon,  161 

Claimant  of  property  being  non- 
suit before  issue  joined,  writ  of 
enquiry  executed,  and  judgment 
thereupon,  162 

Judgment  for  defendant  against 
claimant,  when  the  value  of  the 
property  is  more  than  the  rent,    162 

Writs  o^  fieri  facias^  208,  9 

REPLICATION. 

Replications  to  pleas  to  the  juris- 
diction, 22.  23 

Entry  of  replication  filed  at  the 
rules,  23 

General  rules  as  to  replications 
to  pleas  in  bar,  59.  84 

How  replication  should  conclude,    84 

Entry  of  replication  being  filed 
to  special  plea,  89 

Entry  of  general  replication  to 
plea  under  act  of  April  16. 1831, 
with  issue,  92 

Cases  in  which  replications  were 
adjudged  defective,  84, 5 


RESTITUTION. 

Writ  of  restitution  awarded  upon 
re  versing  j  udgment  on  complaint 
of  unlawfiil  entry  or  detainer,     386 

Form  of  the  writ,  390 

After  reversal  of  judgment  of 
reversal,  writ  of  re-restitution 
awarded,  395 

Form  of  the  writ,  399 


RETRAXIT. 

Entry  of  retraxit^ 

RETURN. 


96 


1.  Upon  capias  ad  respondendum. 
Where  it  is  executed  £ind  the  bail 

required  is  not  given,  7 

Where  bail  is  given  before  the  re- 
turn day  of  the  writ  is  past,  8 
Where  bail  is  not  required  and 
process  is  executed,      »  9 
Of  not  found,                                        9 
Of  no  inhabitant,                                 9 

2.  Upon  other  process  issued  in  com- 

mon personal  actions  before  judg- 
ment. 

Upon  attachment,  12 

Upon  process  of  proclamation,         12 
Upon  scire  facias  against  a  party 
in  the  commonwealth,  36 

Against  a  party  out  of  the  com- 
monwealth, 35 
Of  service  upon  agent,  38 
Of  service  by  publication,             ■   38 

3.  In  cases  of  a  peculiar  nature. 
Upon  writ  of  replevin.     See  Re- 
plevin, and  154 

Upon  warrant  in  case  of  unlaw- 
ful entry  or  detainer,  195 

Under  writ  de  partitionc  facienda,  206 

Upon  attachments  against  ab- 
sconding debtors,  304 

In  cases  of  habeas  corpus,      357, 8, 9 

4.  Upon  executions. 

On  writs  of  fieri  facias,     212  to  220 
On  writs  of  capias  ad  satisfacien- 
dum and  e  scape  warrants,    224  to  235 
Return  on  execution  amended  by 
stating  that  supersedeas  was  re- 
ceived before  day  of  sale,  276 

5.  Upon  writs  of  scire  facias  issued 

after  judgment,  or  upon  recogni- 
zance. 

Sundry  returns,  262 

Return  of  scire  facias  against  spe- 
cial bail  amended,  264 

6.  Motion  for  Tiot  making  proper 

return. 

Of  an  execution,  a  forthcoming 
bond,  schedule  of  an  insolvent 
or  account  of  sales,       289. 290. 291 


632 


INDEX. 


REVIVAL  OF  SUITS. 

Order  reviving  suit  against  perso- 
nal representative  by  consent,        38 

Order  substituting  an  adminis- 
tor  de  bonis  nun  as  plaintiff  in 
the  place  of  an  executor  whose 
powers  have  been  revoked,  39 

Order  substituting  an  adminis- 
trator de  bonis  non  as  defendant 
in  the  place  of  an  executor  whose 
powers  have  been  revoked,  39 

Supersedeas  revived  by  consent,    376 

Concerning  revival  by  scire  fa- 
cias, see  title  Scire  Facias. 

RIEJYS  PER  DISCEKT. 

Plea  by  an  heir,  of  riens  per  dis- 
cent,  83 

Special  replication  under  the  sta- 
tute, 87 

Verdict  against  an  heir,  upon  re- 
plication under  the  statute,  127 

RULES. 

Leave  granted  to  amend  decla- 
ration, and  cause  remanded  to 
rules,  93 

Order  repianding  a  cause  to  the 
rules,  for  the  issues  to  be  made 
up,  94 

RULE  TO  DECLARE. 

Rule  to  declare,  14. 158 

Dismission  at  succeeding  rule 
for  want  of  declaration,  14. 158 

RULE  TO  JOIN  IN  DEMURRER. 

Entry  of  rule  to  join  in  demur- 
rer to  declaration,  25 

Entry  at  succeeding  rule  day,  if 
plaintiff  fail  to  join  in  demur- 
rer, 25 

RULE  TO  PLEAD. 

Entry  of  rule  to  plead,  20. 159 

Entiy  at  succeeding  rule  day,  if 
defendant  fail  to  plead,  21 

In  replevin,  avowry  filed  at  rules 
in  circuit  court,  and  rule  to 
plead,  160 

Plaintiff  nonsuited  at  the  suc- 
ceeding rule  day  for  want  of 
plea,  160 


RULE  TO  REPLY. 

Entry  of  rule  to  reply, 


21 


Entry  at  succeeding  rule  day,  if 
plaintiff  fail  to  reply,  22 

In  replevin,  plea  to  declaration  at 
rules  in  circuit  court,  and  rule 
to  reply,  159 

Plaintiff  nonsuited  at  succeed- 
ing rule  day,  for  want  of  repli- 
cation, 159 

Plea  filed  to  avowry  at  rules  in 
circuit  court,  and  rule  to  reply,  161 

Avowant  failing  to  reply,  judg- 
ment entered  for  plaintiff  in 
circuit  court,  at  succeeding 
rule  day,  160 

RULE  TO  REJOIN. 

Entry  of  rule  to  rejoin,  23 

RULE  TO  SHEW  C-\USE. 

See  Subpana. 

RUNAWAY. 

See  Slave,  and  569,  70 

S 

SATISFACTION. 

After  judgment  for  plaintiff,  sa- 
tisfaction acknowledged  as  to 
part,  150 

Satisfaction  of  judgment  ac- 
knowledged at  a  subsequent 
term,  150 

SCHEDULE. 

See  Insolvent. 

SCHOOL  COMMISSIONERS. 

Notice  of  motion  by  president 
and  directors  of  literary  fund 
against  treasurer  of  school 
commissioners,  284 

SCILICET. 

When  matter  alleged  under  a 
scilicet,  may  be  rejected,  402,  3 

Cases  of  usury  stand  on  pecu- 
liar ground,  481 

SCIRE  FJlCMS. 

1.  To  revive  a  personal  action. 

Order  awarding  scire  facias  to 
revive  suit  in  the  name  of  or 
against  a  representative,  34 

What  must  be  set  forth  in  scire 
facias  to  revive  action  of  deti- 


INDEX. 


633 


nue  against  defendant's  repre- 
sentative, 35 

Forms  of  writs  of  scire  facias  to 
revive  suits,  34,5,6 

Sheriff  "s  return  upon  scire  fa- 
cias against  a  party  in  the  com- 
monwealth, 36 

Order  awarding  scire  facias 
against  defendant,  who  is  out 
of  the  commonwealth,  37 

Writ  of  scire  facias  against  de- 
fendant, who  is  out  of  the  com- 
monwealth, 37 

Return  to  such  writ,  of  service 
upon  agent,  38 

Publication  of  writ,  38 

Return  of  service  by  publication,  38 

Entry  upon  scire  facias  against 
personal  representative  being 
returned  executed,  38 

Entry  after  return  of  scire  fa- 
cias against  personal  represen- 
tative, when  he  pleads  de  novo,     38 

2.  To  recite  a  suit  for  land. 
Scire  facias  awarded  for  or 

against  heirs  or  devisees,  176. 188 
Writ  of  scire  facias  in  such 

case,  176. 188 

Upon  return  of  scire  facias 

executed,  heirs  or  devisees 

made  parties  to  the  action,    176. 189 

3.  Form  of  writ  after  judgment  or 

upon  recognizance. 
Where  execution  has  not  issued 

within  the  year,  245  i 

Upon  death  of  plaintiff,  for  his 
executor  or  administrator  to 
have  execution,  245 

Upon  death  of  defendant  to  have 
execution  against  his  executor 
or  administrator,  246 

Upon  the  death  of  a  party  whose 
estate  is  committed    to  a  she- 
riff, 246 
Upon  death  of  defendant  in  deti- 
nue, to   have  execution  against 
his  executor  or  administrator,      247 
Upon    judgment    in   ejectment, 
against  defendant's  heir,  247 
Upon   a    judgment   for   money, 
against  heirs  and  terretenants, 
to  have  execution  of  the  lands,  248 
By  administrator  de  bonis  non,       248 
Against   administrator  de   bonis 
non,  249 
Where  feme  plaintiff  marries 
after  judgment,  249 
Where  feme  defendant  marries 
afler  judgment,  250 
Where  feme  plaintiff  marries  af- 
ter recovering  judgment,  and  is 
survived  by  her  husband,  who 
dies  before  execution,  250 

80 


Where,  afler  judgment,  plaintiff 
dies,  and  his  administratrix 
marries,  250 

On  a  judgment  providing  for  fur- 
ther breaches,  250 

On  a  judgment  against  a  perso- 
nal representative,  to  be  levied 
quando  acciderint,  251 

Where  the  sale  of  property  is  in- 
demnified, and  the  value  is  re- 
covered from  the  execution  cre- 
ditor, to  have  new  execution,       252 

Where  tenant  by  elegit  is  evict- 
ed of  lands  held  by  extent,  to 
have  new  execution,  253 

To  have  execution  against  pro- 
perty acquired  by  defendant  af- 
ter taking  oath  of  insolvency,      253 

To  have  execution  against  the 
property  of  a  debtor  discharged 
on  account  of  the  creditor's 
failure  to  pay  the  jail  fees,  254 

Upon  recognizance  of  a  surety 
for  costs,  254 

Upon  recognizance  of  special 
bail  taken  by  a  sheriff,  255 

Upon  recognizance  of  special 
bail  taken  by  a  judge  or  jus- 
tice of  the  peace,  256 

Upon  recognizance  of  special 
bail  given  in  court,  257 

Against  special  bail  in  detinue, 
upon  recognizance  taken  by  a 
sheriff,  257 

Against  executor  or  administra- 
tor of  special  bail,  in  action  for 
debt  or  damages,  258 

Against  an  officer  who  dischar- 
ged defendant  from  custody 
without  taking  bail,  or  without 
returning  recognizance,  259 

Where  bail  taken  by  an  officer  is 
adjudged  insufficient,  against 
the  bail  and  the  officer  as  joint 
cognizors,  259 

On  recognizance  to  keep  the 
peace,  260 

On  recognizance  to  appear  and 
answer  a  felony,  261 

On  recognizance  of  witnesses,  to 
appear  and  give  evidence,  261 

4.  Proceedings  on  scire  facias  is- 
sued after  judgment  or  upon  re- 
cognizance. 

Return  of  executed  upon   scire 
facias  against    special  bail,  re- 
turnable in  term  time,  263 
Return  of  nihil,  262 
Other  returns,                                   262 
Mias  scire  facias  awarded,  262 
Scire   facias    for    renewal   of    a 
judgment  being  returned  execu- 
ted, execution  awarded,  262 


634 


INDEX. 


Where  the  scire  facias  is  to  re- 
new a  judgment  in  ejectment,     262 

Upon  scire  facias  to  revive  judg- 
ment against  deceased,  award 
of  execution  against  executor 
or  administrator,  263 

Where  the  scire  facias  is  to  re- 
vive a  judgment  in  detinue,         263 

Award  upon  scire  facias  assign- 
ing new  breaches,  263 

Award  of  execution  for  the  com- 
monwealth, upon  a  recogni- 
zance, 263 

Award  of  execution  against  spe- 
cial bail  in  debt,  264 

Award  of  execution  against  spe- 
cial bail  in  detinue,  264 

Return  of  scire  facias  against 
special  bail  amended,  264 

Where,  upon  recognizance,  scire 

facias  issued  against  two,  and 

both  died,  process  to  revive  a- 

warded   against   representative 

of  last  survivor,  265 

Entry  of  demurrer  to  scire  fa- 
cias and  joinder  therein,  265 

Entry  of  plea  of  no  such  record, 
and  general  replication  thereto,    265 

Oyer  of  record ;  demurrer  to 
scire  facias  j  and  joinder,  266 

Plea  that  execution  had  not  is- 
sued, and  scire  facias  was  not 
sued  out  within  ten  years,  266 

Where  execution  had  issued,  but 
no  return  was  made,  plea  that 
ten  years  had  elapsed,  266 

Another  piea  under  same  sta- 
tute, more  briefly  drawn,  267 

Plea  under  same  statute  by  an 
executor,  or  administrator,  to  a 
scire  facias  issued  to  revive  a 
judgment  obtained  against  de- 
cedent, 267 

Plea  by  executor  or  administra- 
tor that  scire  facias  was  issued 
against  him,  after  the  expiration 
of  five  years  from  his  qualifica- 
tion, 267 

Entry  of  plea  of  payment  with 
general  replication  and  issue ; 
and  office  judgment  set  aside,     267 

Entry  of  judgment  in  the  office, 
when  it  becomes  final,  268 

On  a  scire  facias  assigning  new 
breaches,  damages  assessed,  and 
judgment  for  plaintiff,  268 

Special  bail  surrendering  princi- 
pal after  scire  facias,  judgment 
against  him  for  the  costs,  268 

Entry  of  judgment  where  there 
is  a  confession,  269 

Judgment  on  plea  of  no  such  re- 
cord, where  that  is  the  only  plea,  269 


Judgment  for  plaintiff  where,  be- 
sides no  such  record,  there  is  a 
second  plea,  269 

Judgment  for  defendant  where 
issue  is  found  for  him,  269 

5.  Jlfter  award  of  execution  on  scire 

facias,  forms  of  the   executions 

which  are  issued. 

Fi.  fa.  for  debt  or  damages  reco- 
vered by  a  judgment  which  is 
renewed,  269 

Fi.  fa.  where  judgment  against 
decedent  is  revived  againstexe- 
cutor  or  administrator,  270 

Fi.  fa.  where  judgment  obtained 
by  decedent  is  revived  in  favour 
of  executor  or  administrator,        270 

Elegit  where  judgment  against 
decedent  is  revived  against  his 
heir,  271 

Distringas  and  f.  fa.  where 
judgment  in  detinue  against  de- 
cedent is  revived  against  execu- 
tor or  administrator,  271 

Fi.  fa.  against  special  bail  in  ac- 
tion for  debt  or  damages,  272 

Execution  against  special  bail  in 
detinue,  273 

Execution  for  the  commonwealth 
against  goods  and  chattels, 
lands  and  tenements,  273 

6.  Where  there  is  a  writ  of  error  or 

supersedeas. 

Scire  facias  ad  audiendum  er- 
rores,  338 

Award  of  scire  facias  to  revive 
supersedeas,  376 

Form  of  the  writ,  376 

Mias  scire  facias  awarded,  377 

Scire  facias  where  execution  has 
not  issued  within  a  year  after 
affirmance  by  circuit  court,  of 
judgment  of  county  court,  390 

Scire  facias  against  heirs  and  ter- 
retenants,  to  have  execution 
of  the  lands  upon  a  judgment 
of  circuit  court  affirming  a 
judgment  of  county  court,  ren- 
dered on  a  scire  facias,  391 

Award  of  execution  upon  such 
scire  facias,  391 

Fi.  fa.  after  award  of  execution 
upon  scire  facias  renewing  a 
judgment  of  affirmance,  392 

Fi.  fa.  after  award  of  execution 
against  executor,  upon  scire  fa- 
cias  reviving  judgment  affirm- 
ed against  decedent,  392 

Fi.  fa.  after  award  of  execution 
in  favour  of  executor,  upon 
scire  facias  reviving  judg- 
ment affirmed  in  decedent's 
lifetime,  392 


INDEX. 


635 


Scire  facias  upon  death  of  plain- 
tiff or  defendant  to  have  execu- 
tion for  or  against  executor  or 
administrator,  upon  a  judgment 
of  circuit  court  which  has  been 
affirmed  by  the  court  of  appeals,  400 

Where  the  judgment  of  circuit 
court  affirmed  a  judgment  of 
county  court,  401 

Fi.  fa.  after  award  of  execution 
on  scire  facias,  reviving  in  name 
of  executor  or  administrator  a 
judgraentof  circuit  court  which 
has  been  affirmed  in  the  court 
of  appeals,  401 

SECURITY  FOR  COSTS. 

Notice  that  security  is  required,      26 

Rule  entered  in  court,  in  lieu  of 
notice,  26 

Bond,  where  security  is  given 
witb  the  clerk,  26 

Recognizance,  where  security  is 
given  in  court,  27 

Suit  dismissed  for  want  of  secu- 
rity, after  sixty  days  notice,  27 

Suit  dismissed  for  want  of  secu- 
rity, after  rule  requiring  it,  27 

Upon  death  of  lessor  in  eject- 
ment, security  for  costs  requir- 
ed, 175 

Scire  facias  upon  recognizance 
of  a  surety  for  costs,  254 

SEDUCTION. 

Of  the  remedy  for  seduction,  594 
No  criminal  prosecution  lies,  594 
Remedy  by  action,  594 

Precedent  of  declaration  for  de- 
bauching plaintifFs  daughter,      594 

SEISIN. 

Writ  of  seisin  after  judgment  for 
demandant  on  a  writ  of  right,      240 

Writ  of  seisin  after  judgment  for 
demandant  in  dower,  where  the 
husband  died  seized,  241 

Writ  of  seisin  after  judgment  for 
demandant  in  dower,  where  the 
husband  had  aliened,  241 

Writ  of  seisin  after  judgment  for 
plaintiff  in  action  of  waste,         242 

SERGEANT. 
See  Sheriff. 


SET-OFF. 

Entry  of  account  of  set-offs  be- 
ing filed  with  plea. 


91 


Concerning  pleas  under  act  of 
April  16.  1831,  see  title  Fraud, 

67to73.  91.92.  and  136,7 

Judgment  in  circuit  court  where 
verdict  is  for  less  than  $50,  in 
consequence  of  a  set-off,  146 


SEVERAL  TENANCY. 

Flea  of  several  tenancy, 
SHERIFF. 


186 


1.  Concerning  the  duty  of  a  sheriff 

in  executing  process  and  making 
returns,  see  titles  Bail,  Subpccna, 
Fieri  Facias  and  Return. 

2.  Action  in  sheriff's  name  for  ano- 

ther's benejit. 
Precedentof  a  declaration  in  debt 
on  an  indemnifying  bond  taken 
by  a  sheriff  under  the  statute,     469 

3.  Action  by  sheriff  against  ezecu- 

tion  creditor. 

Declaration  in  assumpsit  by  an 
officer  who  took  property  under 
execution  and  sold  the  same  up- 
on an  agreement  that  he  should 
be  indemnified,  536 

Action  lies  for  a  sheriff  who  le- 
vied upon  goods  at  the  instance 
of  an  execution  creditor,  and 
was  compelled  to  pay  damages 
to  a  claimant  of  the  goods,  to 
recover  the  amount  of  those  da- 
mages from  the  execution  cre- 
ditor, although  there  may  not 
have  been  any  agreement  to  in- 
demnify, 575.  577 

Precedent  of  a  declaration  in 
such  a  case,  575, 6,  7 

4.  Action  against  sheriff  or  his  de- 

puty. 

Summons  instituting  action  a- 
gainst  sheriff,  5 

How  to  declare  against  sheriffs 
for  money  rece'ivGdvirtute  ofjicii,  534 

Debt  lies  against  a  sheriff  con- 
ducting an  election,  under  the 
statute  creating  a  penalty  for 
shewing  partiality,  481 

What  averments  in  the  declara- 
tion are  sufficient  in  such  a  case,  481 

Trespass  lies  against  an  officer 
for  his  tortious  act  or  the  tortious 
act  of  his  deputy,  558 

Action  lies  for  the  owner  of  a 
runaway  slave  against  a  sheriff 
for  not  furnishing  the  slave, 
while  in  jail,  with  bed-covering 
and  fuel,  569, 70 

Precedent  of  a  declaration  in 
such  case,  569,  70 


636 


INDEX. 


What  is  deemed  a  sufficient  war- 
rant to  a  jailor  to  receive  a  slave 
in  his  custody,  571,  2 

Action  lies  for  the  owner  of  a 
slave,  received  in  jail,  against 
the  sheriff  for  his  negligence  in 
suffering  the  slave  to  escape,   571,2 

Case  in  which  a  declaration  for 
such  negligence  was  held  suffi- 
cient, 571,2 

In  what  manner  prisoner  may  be 
delivered  over  by  sheriff  to  his 
successor,  so  as  to  exempt  the 
former  for  escape  afterwards,       572 

Declaration  for  such  escape  a- 
gainst  the  succeeding  sheriff,       572 

When  action  will  lie  against  a 
deputy  sheriff  for  an  illegal  sale 
under  an  execution,  575 

5.  Action  on  sheriff's  bond. 

Of  the  manner  of  assigning 
breaches  of  the  condition  of  a 
sheriff's  bond,  455 

In  whose  name  the  action  on  such 
bond  may  be  maintained,  460 

Precedent  ofa  declaration  against 
the  administrator  of  a  sheriff  for 
taking  insufficient  security  in  a 
forthcoming  bond,  455 

On  what  principle  damages  will 
be  assessed  against  the  sureties 
where  the  breach  assigned  is  the 
escape  of  a  debtor  taken  in  exe- 
cution, 456 

6.  Action  by  sheriff  against  deputy. 
Declaration    in   assumpsit  by   a 

high  sheriff  against  the  adminis- 
trators of  his  deputy  for  money 
received  by  the  deputy  virtute 
officii,  534 

How  receipt  of  money  by  a  de- 
puty must  be  averred,  469 

What  is  no  bar  to  an  action  by  a 
sheriff  on  the  bond  of  his  de- 
puty, 465 

Precedent  of  a  declaration  by  a 
marshal  or  sheriff  on  the  bond 
of  a  deputy  who  is  in  default,      465 

7.  Of  the  action  by  a  deputy  sheriff 

against  his  principal,  for  turning 
him  out  of  office  without  cause,  577 

8.  For  notices  of  motions    against 

sheriffs  and  tlieir  sureties,  of  mo- 
tions by  sheriff  against  deputies 
and  their  sureties,  and  of  mo- 
tions by  the  sureties  of  a  sheriff 
or  of  a  deputy  against  their  prin- 
cipals, as  well  as  for  judgments 
on  such  motions  and  executions 
thereupon,  see  287  to  301 

The  forms  embraced  within  the 
pages  just  referred  to,  are  spe- 
cified in  the  table  of  contents 


prefixed  to  this  volume. 
XXXV.  and  xxxvi. 

SIMILITER. 

To  plea, 

To  replication, 

To  rejoinder. 


See 


64.  65.  83 

89.90 

90 


SIMPLE  CONTRACT. 

Judgment  for  plaintiff  in  debt 
on  simple  contract,  139 

SINGLE  BILL. 

Declaration  in  debt  on  a  single  bill,  410 
Verdict  for  plaintiff  thereupon,     128 
Verdict  for  plaintiff  thereupon, 
responding  to  plea  of  payment,  129 
Judgment  for  plaintiff,  139 

Judgment  in  circuit  court  for 
defendant  where  verdict  is  for 
less  than  $  50,  in  consequence 
of  payments,  147 

SLANDER. 

When  action  of  slander  lies,  590 

In  what  sense  the  words  will  be 
understood,  590 

When  the  declaration  will  be 
sufficient  and  when  not,  590 

Precedents  of  declarations  for 
slander,  590 

Certificate  of  defendant  in  slan- 
der produced  and  recorded  by 
consent,  and  suit  dismissed  at 
defendant's  costs,  97 

Judgment  in  slander  where  less 
than  $16.66  is  found  in  a  cir- 
cuit court,  or  less  than  $6.66 
in  a  county  or  corporation 
court,  143 

SLAVE. 

Under  what  circumstances  ac- 
tion may  be  maintained  for 
loss  of,  or  injury  to  a  slave, 
occasioned  by  defendant's  ne- 
glect, 566, 7,  8 

Precedent  of  a  declaration  for 
such  neglect  by  the  owner 
against  one  to  whom  he  hired 
the  slave,  568 

Under  what  circumstances  ac- 
tion lies  on  behalf  of  the  ow- 
ner of  a  runaway  slave 
against  a  sheriff  for  not  fur- 
nishing the  slave,  while  in 
jail,  with  bed-covering  and 
fuel,  569, 70 

Precedent  of  a  declaratioa  in 
such  case,  569,  70 


INDEX. 


637 


What  is  deemed  a  safficient 
warrant  to  a  jailor  to  receive 
a  slave  in  his  custody,  571,2 

Action  lies  for  the  owner  of  a 
slave,  received  in  jail,  against 
the  sheriff  for  his  negligence 
in  suffering  the  slave  to  es- 
cape, 571, 2 

Case  in  which  a  declaration  for 
such  negligence  was  held  suf- 
ficient, 571,2 

Verdict  finding  defendant  guilty 
of  dealing  with  a  slave,  and 
judgment  thereupon,  138 

See  also  titles  Attachment  and 
Freedom. 


SPECIAL  BAIL. 


See  Bail. 


SPECIAL  PLEAS. 

See  Pleas. 

SPECIAL  VERDICT. 

Form  of  a  special  verdict,  132 

Entry  of  special  verdict,  132 
Special  verdict  set  aside  and 

venire  de  novo  awarded,  133 
Judgment  upon  special  verdict,  150 
Special  verdict  returned  in  eject- 
ment, 178 

SPECIFIC  EXECUTION. 

See  Vendor  and  Vendee,  and        178,  9 

STATUTE  OF  FRAUDS. 

Provisions  of  the  statute. 

1.  Of  action  against  an  executor  or 

administrator  upon  a  promise  to 
pay  a  debt  of  the  decedent,  543 

2.  Of    action   upon   a  promise   to 

answer  for  the  debt,  default 
or  miscarriage  of  another  per- 
son. 543 

Statute  applies  where  creditor 
has  a  double  remedy,  543 

Whether  books  of  a  merchant 
are  evidence  that  he  had  not  a 
double  remedy,  544 

Consideration  need  not  be  ex- 
pressed in  the  writing,  but  may 
be  proved  d^ehors,  544 

What  is  a  promise  to  pay,  and 
what  a  sufficient  consideration 
for  it,  544 

Declaration  need  not  set  out  the 
writing,  but  must  d'escribe  the 
promise  correctly,  545 


If  promise  was  conditional,  con- 
dition must  appear  to  have  been 
complied  with,  545 

Necessary  sometimes  to  aver  no- 
tice to  defendant,  545 

But  not  necessary  to  aver  de- 
mand "upon  third  person  and  his 
refusal,  545 

Precedent  of  a  declaration  upon 
such  promise,  545  to  549 

3.  Of  action  for  money  agreed  to 

be  paid  in  consideration  of  mar- 
riage, 549 

4.  Of  action  upon  a  contract  for  the 

sale  of  lands,  549 

5.  Of  action  upon  an  agreement 

which  is  not  to  be  performed 
within  one  year,  550 

STATUTE  OF  LIMITATIONS. 

How  far  possession  of  slaves  for 
five  years  operates  to  give  title,  562 

In  what  way  a  creditor  suing  in 
debt  on  a  note  which  has  been 
payable  more  than  five  years, 
must  declare  in  order  to  have 
the  benefit  of  a  new  promise 
made  within  the  five  years,  446 

Forms  of  pleas  under  the  various 
statutes  of  limitation,  76.  79.  80 

Various  forms  of  replications  to 
such  pleas,  85.  86.  87 

Plea  ore  tenus,  that  action  was  not 
commenced  within  five  years, 
general  replication  thereto,  and 
issue,  89 

Verdict  on  plea  that  action  was 
not  commenced  in  time,  126 

Plea  to  scire  facias  on  judgment, 
that  execution  had  not  issued 
and  scire  facias  was  not  sued 
out  within  ten  years,  266 

Where  execution  had  issued,  but 
no  return  was  made,  plea  that 
ten  years  had  elapsed,  266 

Another  plea  under  same  statute 
more  briefly  drawn,  267 

Plea  under  same  statute,  by  an 
executor  or  administrator,  to  a 
scire  facias  issued  to  revive  a 
judgment  obtained  against  de- 
cedent, 267 

Plea  by  executor  or  administra- 
tor that  scire  facias  was  issued 
against  him  after  the  expiration 
of  five  years  from  his  qualifica- 
tion, 267 

STAY  OF  EXECUTION. 

Confession  of  judgment  with  stay 
of  execution,  100 


638 


INDEX. 


STERLING  MONEY. 

How  sterling  money  debts  are 
sued  for  and  recovered,  440,  41 

How  in  action  for  sterling  mo- 
ney, the  damages  are  laid,  441 

In  action  of  assumpsit  for  ster- 
ling money,  though  the  decla- 
ration lays  the  damages  in  ster- 
ling, yet  the  damages  may  be  as- 
sessed in  current  money,  131 

Verdict  in  action  of  assumpsit  for 
sterling  money,  assessing  da- 
mages in  current  money,  131 

Judgment  for  plaintiff  in  debt  on 
a  protested  foreign  bill  of  ex- 
change, 140 

Judgment  on  foreign  bill  of  ex- 
change, where  it  is  given  for  a 
debt  due  in  current  money,  or 
for  current  money  advanced  and 
paid,  and  the  sum  in  current  mo- 
ney that  was  paid  or  allowed  is 
not  expressed  in  the  bill,  140 

STOCK. 

Declaration  in  debt  on  a  bond  to 
transfer  back,  when  required, 
bank  stock,  and  pay  such  divi- 
dends as  might  be  declared 
thereon  in  the  mean  time,  479 

STOLEN  NOTES. 

See  Trover,  and  565,  6 

SUBMISSION. 

See  Jlrbitration  and  Award. 

SUBPiENA. 

1.  Common  form  of  subpama. 

For  a  witness  to  attend  court,  51 

For  a  witness  to  attend  arbitra- 
tors, 51 
For  a  witness  to  attend  on  an  or- 
der of  survey,  51 

2.  Of  the  suhpmna  duces  tecum. 

Order  awarding  same,  51 

Form  of  the  writ,  52 

3.  Rule  against  sheriff. 

Entry  of  rule  for  not  returning  a 
subpwna,  '  53 

Summons  against  the  sheriff  un- 
der the  preceding  order,  53 

4.  Proceedings  against  witness. 
Entry  of  rule   against  a  witness 

for  not  attending  in  obedience 
to  a  subpoena,  53 

Summons  against  witness  under 
the  preceding  order,  54 


Rule  against  a  witness  discharg- 
ed, 54 

Witness  fined  for  his  failure  to 
attend,  54 

Attachment  awarded  against  a 
witness  for  contempt  in  not  at- 
tending, 54 

Form  of  the  attachment,  55 

See  also  title  Witness,  and  55,  6 

SUBSTITUTION. 

Principle  of  substitution  enables 
a  surety  in  a  bond  secured  by  a 
mortgage,  who  pays  it  after  for- 
feiture, to  maintain  action  in 
name  of  mortgagee  against  mort- 
gagor, 560,  61 

SUITS  FOR  FREEDOM. 

See  Freedom. 

SUMMONS. 

Summons  instituting  an  action 
against  a  judge  of  the  general 
court,  4 

Against  any  other  privileged  per- 
son, 5 

Against  a  bank  in  a  suit  insti- 
tuted in  the  county  where  a 
branch  is  established,  5 

Against  a  corporation  in  any 
other  case,  5 

SUPERSEDEAS. 

Petition  to  circuit  court  for  a  su- 
persedeas, 371 
Certificate  of  counsel,                     371 
Order  denying  supersedeas,  371 
Order  awarding  supersedeas,          372 
Record  with  order  allowing  writ 
not  delivered  to  clerk  in  fifteen 
days,  but   afterwards   received 
by  the  court,                                    372 
Bond  given  before  the  superse- 
deas is  issued,                                  372 
Form  of  the  writ  of  supersedeas 
to  judgment  of  county  or  cor- 
poration court,                               373 
Concerning  the  certiorari,  see 
that  title,  and                               373, 4 
Order     quashing    supersedeas 
which  had  been  improvident- 
ly  allowed,                                      375 
Plaintiff  being  called  and  not 
appearing,    supersedeas    dis- 
missed,                                             376 
Supersedeas  revived  by  consent,    376 
Concerning  revival  by  scire  fa- 
cias, see  titles  Scire  facias.  Pub- 
lication, and                               376, 7 


INDEX. 


639 


Where  one  of  two  plaintiffs  dies, 
abatement  as  to  him,  377 

Judgments  of  affirmance  and  re- 
versal in  various  cases,      376  to  387 

Supersedeas  heard  and  time  ta- 
ken to  consider,  387 

Supersedeas  partly  heard,  387 

Supersedeas  fully  heard  and  time 
taken  to  consider,  387 

Supersedeas  fully  considered  and 
judgment,  387 

After  judgment  in  circuit  court, 
forms  of  executions,  writs  of 
scire  facias,  judgments  and  ex- 
ecutions thereupon,  387  to  392 

Transcript  of  the  record  of  a 
judgment  in  circuit  court,  gi- 
ven on  a  supersedeas,  393 

Writ  of  supersedeas  to  judgment 
of  circuit  court,  394 

Bond  given  when  supersedeas  is 
obtained  to  judgment  of  circuit 
court,  394 

Forms  of  judgments  on  such  su- 
persedeas, 395 

Decision  of  appellate  court  re- 
ceived by  clerk  of  court  below, 
during  the  session  of  the  court, 
and  judgment  entered  pursuant 
thereto,  396 

Decision  of  court  of  appeals, 
received  by  clerk  of  circuit 
court,  in  vacation,  and  entry 
thereof,  396 

After  affirmance  of  judgment  in 
detinue,  proceedings  to  ascer- 
tain the  value  of  the  hires  of 
the  slave  recovered,  which  have 
accrued  since  the  verdict  and 
judgment,  396 

After  judgment  on  complaint  for 
unlawful  entry  or  detainer  is 
reversed,  and  case  remanded, 
new  jury  impannelled,  397 

After  judgment  in  court  of  ap- 
peals, forms  of  executions,  writs 
of  scire  facias  and  executions 
awarded  thereupon,  397  to  401 

SUPERSEDEAS  BOJS'D. 

Form  of  the  bond,  372. 394 

Under  what  circumstances  there 
may  be  a  recovery  on  the 
bond,  473 

SURETY. 

1.  Concerning   surety's   right   of 

substitution,  see   Substitution, 

and  560, 61 

2.  Pleas  by  surety  under  statute, 

requiring  action  to  be  brought 


in  a  reasonable  time  after  no- 
tice, 76,7 

3.  Cases  of  execution  upon  judg- 

ment against  principal  and 
surety,  being  quashed  on  sure- 
ty's motion,  242, 3 

4.  Motion  by  surety  against  prin- 

cipal. 
Notice  of  such  motion,  279 

Judgment  for  surety,  279 

Fi.  fa.  on  the  judgment,  280 

Transcript  of  record,  370 

5.  Motion  for  surety  against  execu- 

tor or  administrator  of  princi- 
pal. 

Judgment  for  surety  on  such  mo- 
tion, 280 

Fi.  fa.  on  the  judgment,  280 

6.  Motion  by  surety  against   co- 

surety. 
Notice  of  the  motion,  281 

Judgment  for  surety  on  such 

motion,  281 

7.  Concerning    motions    against 

the  sureties  of  a  sheriff  or 
his  deputy  or  by  such  sure- 
ties against  their  principal, 
see  287  to  301 

SURRENDER  BY  BAIL. 

See  Bail,  and  30  to  33 

SURVEY. 

Order  of  survey,  175 

Subpoena  for  witness  to  attend 
survey,  51 

SURVEYOR. 

Action  lies  against  a  surveyor 
for  fraudulently  refusing  to 
furnish  copies  of  surveys,  578 

SUSPENSION  OF  EXECUTION. 

1 .  On  judgment  for  unlawful  entry 

or  detainer. 

Certificate  of  counsel  to  procure 
suspension,  198 

Order  directing  execution  to  be 
suspended,  198 

Bond  given  at  the  time  of  pro- 
curing suspension,  199 

2.  On  other  judgments. 

Where  party  desires  to  appeal, 
order  directing  execution  to  be 
suspended,  360 

Bond  given  when  the  court 
suspends  execution,  to  let 
the  party  apply  for  an  ap- 
peal,  360 


640 


INDEX. 


TAXES. 

Notice  of  motion  by  sheriff 
against  deputy  and  his  sure- 
ties, for  taxes,  298 

Notice  of  motion  by  sheriff 
against  administrators  of  de- 
puty, for  taxes,  298 

Fi.  fa.  upon  judgment  in  favour 
of  sheriff  against  deputy's  sure- 
ties, for  taxes,  299 

TENDER. 

Effect  of  tender  of  less  sum 
than  is  due,  84 

When  tender  may  be  given  in 
evidence  under  plea  of  pay- 
ment, ,  83 

When  plea  of  tender  will  be  con- 
sidered bad  in  form,  83 

Entry  of  plea  of  tender  and  mo- 
ney brought  into  court,  91 

Verdict  for  defendant  respond- 
ing to  plea  of  non  assumpsit 
as  to  part,  and  tender  as  to  resi- 
due, 130 

Response  in  favour  of  defendant 
as  to  tender  of  part,  and  in 
favour  of  plaintiff,  upon  plea  of 
non  assumpsit^  130 

TESTATUM  CAPMS. 

Award  of  this  writ,  10 

Form  of  the  writ,  11 

THREE  MONTHS  BOND. 

See  title  Distress. 

TRESPASS. 

Distinction  between  trespass  and 
case,  555 

Of  the  different  kinds  of  tres- 
pass, 555  to  560 

1 .  Trespass  to  or  upon  the  person,      555 
Against  whom  maintainable  and 

form  of  declaration,  555 

2.  Trespass  upon  real  property. 

By  whom  the  action  can  and  can- 
not be  maintained,  555 

Against  whom  it  can  and  cannot 
be  maintained,  555 

To  what  extent  plaintiff  may 
claim  redress,  555 

How  the  count  must  be  framed,     556 

Advisable  that  the  place  be  men- 
tioned, 556 

Use  of  clause  of  alia  enormia,      557 


Forms  of  declarations,  557 

3.  Trespass    upon    personal    pro- 
perty, 558 

It  lies  for  destroying  or  injurinor 
slaves,  558 

It  lies  against  an  officer  for  his 
tortious  act,  558 

Or  for  the  tortious  act  of  his  de- 
puty, 558 

When  it  lies  for  or  against  a  per- 
sonal representative,  559 

What  amounts  to  a  waiver  of 
the  trespass,  559 

Whether  the  declaration  must 
specify  the  property,  559 

Whether  declaration  must  state 
possession  of  plaintiff,  559 

Averment  of  property  indispen- 
sable, 559 

Forms  of  declarations,  560 

4.  Verdict. 

On  writ  of  enquiry,  124 

For  plaintiff  on  issue,  131 

5.  Judgment. 

Upon  confession,  99 

On  verdict  for  plaintiff,  143 

In  action  of  assault  and  battery, 
or  slander,  where  less  than 
$1666  is  found  in  a  circuit 
court,  or  less  than  $6.66  in  a 
county  or  corporation  court,  143 
Where  the  jury  find  under  $  6.66 
in  trespass,  143 

In  action  of  trespass,  assault  or 
false  imprisonment,  against  se- 
veral, one  of  v?hom  is  found 
guilty  and  another  not,  146 

6.  Execution. 

"W  liis  o(  fieri  facias,  208 

TROVER. 

Action  for  a  slave  or  other  chat- 
tel converted  by  defendant  to 
his  use,  may  be  maintained  by  a 
trustee,  564 

It  will  not  lie  against  an  agent 
who  has  made  payment  to  his 
principal  without  notice,  564 

But  a  payment  over  by  an  execu- 
tor or  administrator  will  not 
exonerate  him,  564 

When  demand  and  refusal  are  not 
necessary  to  be  shewn,  564 

Under  what  circumstances  action 
will  lie  for  bank  notes  or  bills  of 
exchange  lost  by  or  stolen  from 
plaintiff,  and  converted  by  de- 
fendant to  his  use,  565, 6 

Form  of  declaration  in  trover,       565 

Whether  it  is  necessary  in  decla- 
ration to  state  price  or  value  of 
thing  converted,  565 


INDEX. 


641 


TRUST. 

Notice  to  plaintiff  who  claims  un- 
der a  trust  which  is  satisfied,        177 

TRUSTEE. 

Under  what  circumstances,  ac- 
tion of  trover  may  be  maintain- 
ed against  a  trustee,  564 

TURNPIKE  COMPANY. 

Notice  of  motion  by  a  turnpike 
company  against  a  delinquent 
stockholder,  282 

U 

VNDE  NIHIL  HABET. 

Writ  of  -unde  nihil  kabet  in  dower,  191 

UNLAWFUL  ENTRY  OR  DE- 
TAINER. 

Complaint  of  unlawful  entry  or 

detainer,  195 

Affidavit  that  complaint  is  true,     195 
Warrant  to  officer,  195 

Officer's  return  upon  warrant,  195 
Court  formed,  jury  impannelled, 
evidence  heard  and  verdict  re- 
turned, 196 
Judgment  for  plaintiff,  196 
Judgment  for  defendant,  196 
New  trial  granted,  197 
New  trial  had  at  regular  term,  197 
Court  adjourned  in  consequence 

of  jury's  not  agreeing,  197 

Jury  failing  to  agree,  juror  with- 
drawn and  cause  continued  till 
the  next  term,  197 

After  jury  had  failed  to  agree, 
new  jury  impannelled  at  regu- 
lar court,  197 
No  court  having  been  formed  on 
the  day  appointed,  jury  impan- 
nelled at  the  next  court,  198 
Bills   of  exception   admitted   to 
opinions  of  the  court,  198 
Certificate  of  counsel  to  procure 
suspension  of  the  execution,        198 
Order  directing  execution  of  the 
judgment  to  be  suspended,  198 
Bond  given  at  the  time  of  pro- 
curing a  suspension  of  the  exe- 
cution, 199 
Ft.  fa.   for   costs   recovered  by 
plaintiff,                                           "210 
Writof  possession  after  judgment 
for  plaintiff,  242 
Transcript  of  the  record,  365 
81 


Judgment  for  plaintiff  reversed 
by  circuit  court,  and  writ  of  res- 
titution awarded  to  restore  pos- 
session, 386 
Form  of  writ  of  restitution,            390 
Reversal  of  judgment  of  circuit 
court,  which  reversed  judgment 
of  county  court,  and  writ  of  re- 
restitution  awarded,  395 
Form  of  writ  of  re-restitution,      399 
Aft«r  judgment  is  reversed  and 
case  remanded,   new  jury  im- 
pannelled, 397 

USE  AND  OCCUPATION. 

When  assumpsit  lies  for  the  use 
and  occupation  of  land,  530 

Declaration  in  such  action,  530 

USURY. 

In  a  declaration  for  usury,  date 
of  usurious  contract  must  be  al- 
leged and  proved,  481 

Plea  against  a  specialty,  under 
statute  against  usury,  66 

General  replication  to  plea  of 
usury,  85 


VARIANCE. 

Plea  in  abatement  for  variance  be- 
tween the  writ  and  declaration,     19 

Concerning  variance  between  oZ- 
legata  and  probata,  see 

402, 3.  418, 19.  and  519 

VENDOR  AND  VENDEE. 

1.  Of  action  against  vendee  for  not 

complying  with  terms. 

Liability  of  vendee  for  the  price 
of  goods  sold  and  virtually  de- 
livered, 523 

Remedy  against  a  purchaser  at 
auction,  failing  to  comply  with 
the  terms,  524 

Declaration  in  assumpsit  against 
such  purchaser,  for  the  loss  upon 
a  resale,  524 

2.  Of  the  remedy  against  a  vendor 
for  fraud. 

Action  lies  for  false  representa- 
tion or  suppression  of  truth,         578 
Case  of  a  false  representation,       578 
Case  of  suppression  of  the  truth,  579 
Declaration  must  always  allege 

fraud,  579 

Precedent  of  a  declaration  against 
a  vendor  for  fraud,  579  to  583 


642 


INDEX. 


3.  How  vendee  may  defend  action 
against  him  for  land. 

Notice  by  defendant  who  is  a  ven- 
dee, or  the  heir  of  a  vendee, 
entitled  to  specific  execution,       178 

Special  verdict  returned,  178 

Judgment  under  the  statute  for 
defendant  entitled  to  a  convey- 
ance of  the  legal  title  from  the 
vendor  or  his  heirs,  178,  9 

Judgment  against  vendee,  or 
heirs  of  vendee,  who  made  de- 
fence under  the  statute,  ]  79 

VEJ^DITIOm  EXPOJV^S. 

Form  of  the  writ  in  an  ordinary 
case,  220 

Form  of  the  writ  to  a  late  sheriff,  220 
Form  of  the  writ  for  the  sale  of 
property  taken  by  an  officer  who 
died  before  selling  it,  221 

VENIRE  DE  NOVO. 

Special  verdict  set  aside  and  ve- 
nire de  novo  awarded,  133 

VENUE. 

Omission  in  declaration  to  state 
the  place,  ground  of  special  de- 
murrer, 418 

Order  changing  venue,  43 

VERDICT. 

On  writ  of  enquiry  except  in  de- 
tinue, 124 

On  writ  of  enquiry  in  detinue,      124 

Upon  issue  or  issues,  where  the 
finding  is  general  and  not  ex- 
tended into  form,  128 

Upon  issue  or  issues  where  the 
finding  responds  to  the  same,  or 
is  extended  by  the  clerk  into 
form,  125 

For  the  form  of  the  verdict  in 
any  particular  form  of  action, 
such  as  debt,  covenant,  assump- 
sit, trespass,  detinue  or  case,  or 
upon  any  particular  issue,  such 
as  non  est  factum,  nil  debet,  non 
assumpsit^  non  detinet  or  not 
guilty,  refer  to  the  appropriate 
head. 

W 

WARRANTY. 

Declaration  upon  a  covenant  to 
warrant  and  defend  the  quanti- 
ty of  land  mentioned  in  a  deed,  488 


Upon  a  covenant  to  warrant  and 
defend  the  title  to  land  convey- 
ed, 489 

What  amounts  to  a  warranty  of 
title  to  a  chattel,  527 

In  assumpsit  on  such  a  warranty, 
what  must  be  laid  in  the  decla- 
ration, 527 

Declaration  in  assumpsit  by  the 
purchaser  of  a  slave  warranted 
sound,  who  was_diseased  at  the 
time,  and  remained  so  until  her 
death,  527 

Right  of  the  purchaser  of  a  horse 
warranted  sound  (and  offered  to 
be  returned  upon  being  disco- 
vered to  be  unsound)  to  recover 
the  expense  of  keeping  and  the 
loss  upon  a  resale,  528 

Action  lies  on  behalf  of  the  pur- 
chaser of  a  horse  warranted 
sound,  who  proved  to  be  un- 
sound, but  was  not  returned  or 
tendered,  529 

Action  lies  on  behalf  of  the  pur- 
chaser of  seed  warranted  good, 
which  were  used  and  proved  not 
to  be  good,  529 

Action  lies  on  behalf  of  the  pur- 
chaser of  an  article  sold  for  a 
particular  purpose,  upon  the  im- 
plied warranty  that  it  is  fit  for 
that  purpose,  530 

WASTE. 

Summons  in  action  of  waste,        200 
Declaration,  200 

Award  of  attachment,  201 

Process  of  attachment,  201 

Award  of  distress,  201 

Process  of  distress,  202 

Defendant  not  appearing  upon 
the  distress,  judgment  by  de- 
fault, and  process  awarded  to 
have  the  waste  enquired  of,  202 

Form  of  such  process,  202 

Writ  of  enquiry  returned,  judg- 
ment by  default  set  aside,  and 
issue  joined,  203 

Verdict  for  plaintiff  as  to  part, 

and  judgment  thereupon,  203 

Fi.  fa.  for  damages  recovered,       21 0 
Writ  of  seisin,  242 

WITNESS. 

See  Subpana,  and  51  to  55 

Order  committing  to  prison  a  wit- 
•  ness  who  refuses  to  give  evi- 
dence, 55 
Order  in  favour  of  witness  for 
his  attendance,  55 


INDEX. 


643 


Attachment  on  order  for  atten- 
dance, 55 

Summons  against  an  executor 
upon  order  for  attendance,  55 

WORK  AND  MATERIALS. 

Common  count  in  assumpsit  for 
work  and  materials,  550 

When  it  is  proper  and  when  not,  551 

WRIT  OF  ENQUIRY. 

Award  of  when  conditional  judg- 
ment is  confirmed,  14 

Award  of  when,  after  rule  to 
plead,  defendant  is  in  default,         21 

In  debt  on  judgment,  demurrer 
to  plea  sustained,  and  judgment 
not  being  for  interest,  writ  of 
enquiry  awarded.  111 

After  writ  of  enquiry,  damages 
assessed  by  the  court,  and  final 
judgment  rendered,  115 

Verdict  on  writ  of  enquiry,  ex- 
cept in  detinue,  124 

Verdict  on  writ  of  enquiry  in  de- 
tinue, 124 

In  replevin,  tenant  being  nonsuit 
before  issue  joined,  writ  of  en- 
quiry executed  and  judgment 
thereupon,  161 

Claimant  of  property  being  non- 
suit before  issue  joined,  writ  of 
enquiry  executed  and  judgment 
thereupon,  162 

Writ  of  enquiry  awarded  in  suit 
for  freedom,  166 

Writ  of  enquiry  executed  in  suit 
for  freedom,  and  judgment  for 
plaintiif,  167 

Concerning  writ  of  enquiry  in 
waste,  see  title  Waste,  202,  3 

Transcript  of  the  record  in  a  case 
wherein  damages  have  been  as- 
sessed and  judgment  rendered 
on  a  writ  of  enquiry,  363 

WRIT  OF  ERROR. 

1.  In  same  court. 

Petition  for  writ  of  error  coram 
vohis,  337 

Writ  awarded,  337 

Form  of  the  writ,  338 

Scire  facias  ad  audiendum  er- 
ror es,  338 
Error  in  fact  confessed ;  judgment 
reversed;  proceedings  subse- 
quent to  declaration  set  aside ; 
and  cause  sent  to  rules,  339 
Writ  of  error  coram  vobis  award- 
ed, because  plaintiff  was  dead 


when  suit  was  brought;  and  the 
fact  being  admitted,  judgment 
reversed  and  writ  quashed,  339 

2.  From,  appellate  court. 

Petition  for  writ  of  error,  where 
petitioner  cannot  give  security,  374 

Order  upon  such  petition,  award- 
ing the  writ,  374 

Bond  given  for  costs  before  writ 
is  issued,  374 

Form  of  the  writ,  375 

For  proceedings,  like  those  upon 
a  writ  of  supersedeas,  see  title 
Supersedeas. 

WRIT  OF  RIGHT. 

Writ  of  pracipe  quod  reddat,  183 

Count,  163 

Conditional  order,  183 

Judgment   for   want  of  appear- 
ance, 183 
Where  the  prtecipe  is  returned 
not  found,  if  in  a  circuit  court,    184 
Writ  of  exigi  facias  and  return 
thereon,  184 
Judgment  for   demandant  upon 

return  of  exigi  facias,  1 84 

Where  the  proecipe  is  returned 
not  found,  if  in  a  county  or  cor- 
poration court,  184 
Endorsement    by    the    clerk   on 
each  new  prcecipe,                           185 
Return  upon  each  new  prcecipe,    185 
Another  new  j9r<Eci/>e  awarded,      185 
Judgment   for   demandant   after 

five  precipes,  185 

Plea  of  non  tenure,  185 

Plea  of  joint  tenancy,  186 

Plea  of  several  tenancy,  186 

Plea  of  demandant's  death  before 

suit  brought,  186 

Judgment  where  plea  of  non-te- 
nure is  sustained  as  to  parcel  of 
the  land  demanded,  186 

Judgment  where  plea  of  joint  te- 
nancy is  sustained,  186 
Judgment  where  plea  of  joint  te- 
nancy is  disproved,                        186 
Demurrer  to  the  count,                   187 
Plea  in  bar,                                        187 
Replication  to  plea  in  bar,               187 
Entry  of  the  mise  being  joined,    187 
Defence   by  other   than  the  te- 
nant,                                                 187 
Rule  made  upon  ascertaining  that 
demandant  was  dead,  when  the 
suit  was  brought,                             187 
Scire  facias  awarded  the  heirs  or 
devisees  of  demandant,                 188 
Form  of  such  scire  facias,              188 
Upon  return  thereof,  heirs  or  de- 
visees made  parties,                      189 


644 


INDEX. 


Scire  facias  awarded  against  the 
tenant's  heirs  or  devisees,  188 

Form  of  such  scire  facias,  188 

Upon  return  thereof,  heirs  or  de- 
visees made  parlies,  189 

Charge  to  the  recognitors  of  the 
assize,  189 

General  verdict  for  the  tenant, 
and  judgment  thereupon,  189 


General  verdict  for  the  deman- 
dant, and  judgment  thereupon,    189 

General  verdict  for  demandant 
for  part  and  for  tenant  for  resi- 
due; and  judgment  thereupon,  190 

Transcript  of  the  record,  365 

Fi.  fa.  for  demandant  for  his  da- 
mages and  costs,  209 

Writ  of  seisin,  240 


